Do common law marriages exist in Virginia? Yes, they do. The common-law marriages are recognized by Virginia as legal unions under SS 20-38.1. However, there are some things you need to know first. If you are unsure whether or not your marriage is legal, consult a lawyer to find out. However, before you get a lawyer, you should know what common-law marriages look like.
SS 20-38.1
The laws of Virginia recognize common-law marriages. According to Virginia state law, marriages solemnized outside of the Commonwealth are void for lack of authority or defect in a license. The marriage must be lawful in all respects and be consummated with full belief. The only exception to this rule is if the marriage occurs on a reservation, where a license is not required.
The SSA provides a digest of state common-law marriage laws. Among the states that recognize common-law marriages, North Carolina, Colorado, Oklahoma, Texas, and Iowa doesn’t recognize temporary stays of nonresidents as valid common-law marriages. In Iowa and New Jersey, common-law marriages do not require evidence of cohabitation, and the compilation’s accuracy is unknown. Further, in South Carolina, there are no residency requirements to establish a common-law marriage.
SS 20-38.1 recognizes common-law marriages in Virginia when the parties’ marriages were effected in another state. Generally, the parties should have a mutual understanding to establish a common-law marriage. A public declaration of intent must also be made for a common-law marriage to be recognized. Moreover, the court should take into account the intention of the parties when they enter into a common-law marriage.
Kelderhaus v. Kelderhaus provides further guidance in this regard. Unlike the instant case, Kelderhaus addressed the establishment of a common-law marriage in Oklahoma and Texas and did not consider the same facts as the present case. In Kelderhaus, the ALJ cited the following case:
In this case, the ALJ ruled that the common-law marriage between the decedent and Plaintiff was valid. This ruling relies on the case of Barker, which established a presumption that the marriage occurred even though the plaintiff and decedent only lived in South Carolina for brief periods. The ALJ also cites the legal opinion of the regional chief counsel of the Social Security Administration in finding that there was no common-law marriage.
South Carolina law acknowledges that a common-law marriage is recognized in this state when there is a mutual agreement between the two parties. This ruling was reversed in Callen v. Johnson, where the court held that a common-law marriage required mutual agreement. The court also determined that the ALJ’s determination of the marital status of the couple was based on the incorrect interpretation of the applicable law.
The court must make sure the putative father appears. If a male refuses to appear, he must be served with a court order under the authority of Title 8.01.
The courts have held that common-law marriages can be recognized in New York, where the parties were married before the deceased’s death. The husband in Kelderhaus misrepresented his prior marriage as dissolved, but the marriage was recognized by a divorce decree from his former wife. The couple relocated to Arizona, where they obtained the divorce decree, and then drove to Virginia to have their second marriage. They stopped briefly in Texas and Oklahoma en route.
