Pennsylvania abolished common-law marriage by statute effective January 24, 2005, but provided that the statute should not be “deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.” After the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015, holding that same-sex couples have a constitutional right to marry, implicitly affirming Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), a trial court decision that was not appealed by the state, numerous trial judges in Pennsylvania have issued declaratory judgments recognizing common law marriages of same-sex couples that were contracted prior to January 1, 2005. The outlier was a July 8, 2016, order by Judge John D. McBride of the Beaver County Court of Common Pleas in In re Estate of Stephen Carter, in which Judge McBridge refused to affirm an alleged common law marriage contracted in 1996 or 1997 by Carter and his surviving spouse, Michael Hunter, in Philadelphia. On April 17, a unanimous three-judge panel of the Pennsylvania Superior Court provided the first appellate ruling in the state granting retroactive recognition to a same-sex common law marriage, reversing the Beaver County court in response to Hunter’s appeal, 2017 PA Super 104.
Writing for the court, Judge H. Geoffrey Moulton, Jr., found that McBride erred on both of the grounds of decision. The first was that because same-sex couples did not have the right to marry in Pennsylvania until the Whitewood decision in 2014, the two men could not have contracted a common law marriage prior to January 1, 2005. The second was based on McBride’s finding that Hunter had at best established that the men intended to marry when it became legal to do so in Pennsylvania, which he deemed insufficient to establish a common law marriage, despite the evidence that the men exchanged rings, regarded themselves as spouses, lived together, and were regarded as spouses by members of their families.
Judge Moulton found that the trial court’s first ground had misconceived the effect of Whitewood and the U.S. Supreme Court’s subsequent rulings in U.S. v. Windsor and Obergefell v. Hodges. “Together,” he wrote, “Windsor, Whitehead, and Obergefell teach that same-sex couples have precisely the same capacity to enter marriage contracts as do opposite-sex couples, and a court today may not rely on the now-invalidated provisions of the Marriage Law to deny that constitutional reality. Consequently, because opposite-sex couples in Pennsylvania are permitted to establish, through a declaratory judgment action, the existence of a common law marriage prior to January 1, 2005, same-sex couples must have that same right. To deprive Hunter of the opportunity to establish his rights as Carter’s common law spouse, simply because he and Carter are a same-sex couple, would violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”
Turning to the trial court’s second ground, Judge Moulton conceded that even prior to its legislative abolition, common law marriage had been difficult to prove, because of the insistence by Pennsylvania courts that the proponent of recognizing the marriage prove by a preponderance of the evidence that the purported spouses had expressed to each other a present intention to be married. He quoted from the most recent Pennsylvania Supreme Court ruling, Staudenmayer v. Staudenmayer, 714 A. 2d 1016 (Pa. 1998), where the court stated: “A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.” However, continued the Supreme Court, “Because common law marriage cases arose most frequently because of claims for a putative surviving spouse’s share of an estate, however, we developed a rebuttable presumption in favor of a common law marriage where there is an absence of testimony regarding the exchange of verba in praesenti. When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and (2) a reputation of marriage ‘which is not partial or divided but is broad and general,’ raises the rebuttable presumption of marriage.”
In this case, both ways of proving a common law marriage could be found based on the testimony presented to Judge McBride. Hunter recounted how he proposed marriage to Carter on Christmas Day 1996, giving him a diamond ring, asking if Carter would marry him, and Carter answering yes. Two months later, on February 18, 1997, Carter gave Hunter a ring in return which was engraved with that date, and the men henceforth celebrated February 18 as their anniversary for the next 16 years, until Carter died tragically from injuries sustained in a motorcycle accident in April 2013, “less than two months before the United States Supreme Court’s landmark decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which struck down the provision of the federal Defense of Marriage Act (“DOMA”) defining ‘marriage’ as only between one man and one woman,” Judge Moulton commented.
After the men exchanged rings, they bought a house together with a joint mortgage, made mutual wills and other legal documents establishing their relationship, supported each other, held joint bank and investment accounts, and subsequently moved to the Pittsburgh area where they again jointly purchased a house. There was testimony from Carter’s nieces that they referred to Hunter as “Uncle Mike.” It was easy based on the testimonial record for the Superior Court to conclude that McBride erred in basing his decision on one bit of evidence considered out of context, that Carter and Hunter had consciously decided not to go out of state to marry when it became possible for same-sex couples to marry elsewhere, since an out-of-state same-sex marriage would not be recognized in Pennsylvania at that time and they specifically planned to have a ceremonial wedding in their home state of Pennsylvania when that became possible.
This did not, in the view of the Superior Court, undermine the conclusion that they considered themselves married as of February 18, 1997, had continuously cohabited, and had held themselves out to the world as married from that date forward. “In sum,” wrote Moulton, “the evidence clearly established that Hunter and Carter, like countless loving couples before them, expressed ‘an agreement to enter into the legal relationship of marriage at the present time.’ Therefore, we conclude that Hunter proved, by clear and convincing evidence, that he and Carter had entered into a common law marriage on February 18, 1997.” Where McBride went wrong was in failing to distinguish between ceremonial marriage and common law marriage. The evidence on which he relied related to ceremonial marriage, and did not undermine the evidence of a common law marriage.
The court returned the case to the Beaver County Court of Common Pleas “for the entry of an order declaring the existence of a common law marriage between Hunter and Carter as of February 18, 1997.”