Oklahoma recognizes common-law marriages, but only with proof
One of the most popular Google searches in Oklahoma regarding marital law is: “Does Oklahoma recognize common law marriage?” The short answer is that Oklahoma recognizes two forms of marriage: ceremonial marriage and common law marriage. As recently as 2019, the Supreme Court issued a writ of mandamus to an Oklahoma district court judge who issued a summary order refusing to recognize a common-law marriage.
The doctrine of common law marriage dates back to the common law of England and has since been modified by the laws of that country and, in turn, Oklahoma. The ceremonial marriage is established by a license, witnesses and a marriage certificate. On the other hand, several elements tend to prove the existence of a de facto marriage:
1. A real and mutual agreement between the spouses to be husband and wife.
2. A permanent relationship.
3. An exclusive relationship.
4. Proven by living together as husband and wife.
5. The parties to the marriage must present themselves publicly as husband and wife. Although Oklahoma law §43-7 “Solemnization of Marriages” implies that marriage can only exist through a formal ceremony, in the presence of a judge or religious authority and must be filed with the court clerk, the Oklahoma Supreme Court upheld the validity of the common law. marriage when he ruled in 2001, in Standefer v. Standefer, that a common-law marriage is formed when “the minds of the parties meet at the same time to consent”, and that factors 2 through 5 are only evidence to be weighed in considering whether a real or mutual agreement d to be husband and wife has been established. If a de facto marriage is challenged, the onus is on the party seeking to establish the existence of a de facto marriage to prove it with clear and convincing evidence.
For legal practitioners, some things that can strengthen settlement would be joint filing of taxes, keeping joint checking and savings accounts, and showing up as husband and wife, for example, by showing up and /or presenting to others in the community, such as friends, family, church, peers, etc., as being married to each other. Again, these are not conclusive, but they help to establish element 1 above, which is a real and mutual agreement between the spouses to be husband and wife.
For those concerned with establishing a common-law marriage, the Court of Civil Appeals clarified some things when it ruled that infidelity or non-exclusivity does not nullify a marriage or prevent the existence of a de facto marriage, and that the failure of a spouse to assert himself as husband or wife on several occasions does not prevent that spouse from claiming the existence of a de facto marriage.
Molly E. Tipton is a family law attorney with the law firm of Phillips Murrah.