Opinion
No. 13863
Decided February 23, 1967.
Husband and wife — Common-law marriage — Essential elements — Standard of proof — Agreement to marry in praesenti — "Holding out" as evidence thereof, rather than separate element — Party maintaining two residences — Holding out in only one community of residence — No express agreement — Proof insufficient.
1. An agreement to marry in praesenti is an essential element to a common-law marriage.
2. In an action to establish a common-law marriage in which there is no evidence of an express agreement to marry in praesenti, the holding of themselves out to the public as husband and wife is admissible as proof of the existence of such an agreement.
3. When one party to an alleged common-law marriage maintained residences in two communities, in one of which she consistently referred to herself as an unmarried person, while in the other she was sometimes known as the wife of the present claimant to her estate, the evidence is not sufficient to establish such a marriage.
4. Proof of a common-law marriage must be by clear and convincing evidence.
Mr. W. Ralph Pence, for plaintiff.
Mr. Forrest F. Beery, for defendant John I. Burns.
This cause comes before the court on the petition of the administratrix to determine heirship; the answer of the defendant, John I. Burns who claims that he and the decedent were common-law husband and wife and that he is the surviving spouse and sole next of kin of said decedent and that the name of said decedent is Edith Burns; the answers of the three sisters of decedent, Pearl Ferguson, Viola D. Crum and Elsie D. Borton and the reply of administratrix denying such claim.
The burden of proving a common-law marriage lies with the person claiming its existence. Public policy generally condemns common-law marriages and does not accord them any favor, but Ohio is one of the minority of states which recognizes the validity of such marriages. The statutes of Ohio contain definite regulations and requirements and prescribed rigid standards to which applicants for a marriage license must conform, so it is not unusual to find the courts of Ohio demanding that all of the essential elements of common-law marriages be proven by clear and convincing evidence before according them equal legal status.
The defendant, John I. Burns was not permitted to testify in the case at bar, as to facts tending to establish an alleged common-law marriage, seasonable objection having been made to such testimony. The court follows the rule established in the first syllabus of Lynch v. Romas, 74 Ohio Law Abs. 1, to wit:
"In a proceeding for determination of heirship brought by the administrator wherein the defendants are the children of decedent and one claiming to be the surviving spouse by virtue of a common-law marriage, such claimant is an adverse party to the heirs and the administrator and is prohibited from testifying as to facts tending to establish the alleged common-law marriage when objection is made by the children as heirs of decedent."
What are the elements essential to establish a common-law marriage? 35 Ohio Jurisprudence 2d 516, Marriage, Section 22 relied upon and adopted by In re Estate of Soeder, 7 Ohio App.2d 271, states the following:
"The elements essential to the establishment of a common-law marriage have become well established by court decision. They are the following: (1) a mutual agreement to marry in praesenti, made by parties competent to marry; (2) accompanied and followed by cohabitation as husband and wife; (3) a holding of themselves out as husband and wife in the community in which they move; and (4) being regarded as husband and wife in the community in which they move."
The second syllabus of In re Estate of Soeder separates "(1) an agreement of marriage per verba de praesenti; (2) made by parties competent to marry" thus proclaiming five essential elements of a common-law marriage. However, an examination of the hallmark cases: Umbenhower v. Labus, 85 Ohio St. 238; Re Redman, 135 Ohio St. 554; Markley v. Hudson, 143 Ohio St. 163; Gatterdam v. Gatterdam, 86 Ohio App. 29; Lynch v. Romas (App.), 74 Ohio Law Abs. 1, does not necessarily demand the conclusion that "a holding of themselves out as husband and wife in the community in which they move" as an an essential element. In fact the law of the Umbenhower case, supra, the Bellweather case, omits it. Its syllabus reads:
"An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common-law, and a child of such marriage is legitimate and may inherit from the father."
This court is of the opinion that Markley v. Hudson, has been misunderstood as requiring a "holding out" as an additional essential element to prove the common-law marriage. On the contrary, Markley v. Hudson in the first syllabus clearly adopts and reaffirms the essential elements set forth in Umbenhower by stating:
"An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage."
It is true that a common-law marriage, to be valid, can not be secretive. Its very essence requires that the parties be treated and reputed by the public as husband and wife. Yet, if the parties do not hold themselves out to the world to be husband and wife, does a common-law marriage exist?
It is with respect to the proof of an agreement to marry in praesenti that "holding out" becomes important. It was to this point that Markley v. Hudson, directed itself in the second syllabus:
"While such agreement to mary in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside."
Thus, instead of a fifth essential element being added by Markley v. Hudson, the "holding out" evidence is germane to proving the element of an agreement in praesenti, especially where there is no express agreement and one must be implied from all of the circumstances.
Turning to the evidence and testimony in the case before this court, we find that decedent worked in Dayton, Ohio, at National Cash Register for twenty-five years prior to her retirement in 1965. She maintained an apartment there where she lived during the week. She owned property in Sinking Spring and spent weekends, vacations and sick time there. The defendant, John I. Burns lived with her in this home continuously from 1950 until time of her death. She shared the same bedroom with him when at her Sinking Spring home; sometimes referred to him as her husband and referred to his sister as her sister. Several witnesses testified that they were treated and reputed in the Sinking Spring community as husband and wife, but many of these same people had their doubts as to whether they were husband and wife and some stated they did not know their marital status; that they did not know decedent as Mrs. Burns; and some testified that they knew her as Edith Davidson. Decedent was known as Edith Davidson, a single person where she lived and worked in Dayton. She held herself out as such in all of her business transactions and connections including her place of employment, in connection with the United States Government in applying for social security benefits and had her mail addressed to her in Dayton in the name of Edith Davidson. Her insurance was made payable to her estate and some 53 days before her death was admitted to Charles F. Kettering Memorial Hospital as Miss Edith Davidson, single.
There is no evidence of record to dispute the competency of the parties to enter into a marriage contract. The court therefore finds that the parties were competent to marry.
A common-law marriage rests on contract, and cohabitation and reputation do not, of themselves, constitute a valid marriage. An agreement to marry in praesenti is an essential element of a common-law marriage, and its absence precludes the establishment of such a relationship. Leibrock v. Leibrock, 63 Ohio Law Abs. 565. No express agreement to marry in praesenti is in the record in this case, so if there was such an agreement, it must be implied from the holding out of the parties by their acts, declarations and conduct as well as their recognized status by others.
"The mere fact of a man and woman living together has never constituted a marriage recognized at common-law, nor has public acknowledgment of the relation of husband and wife accompanied by cohabitation, been ever deemed itself a valid marriage at common-law, although there seems to be a widespread popular notion that this constitutes a valid common-law marriage and in this country the courts of some states have gone to great lengths in sustaining such acts as proof of an actual marriage." In re Estate of Speeler, 22 Ohio Law Abs. 223.
How did decedent hold herself out to the community and circle in which she moved to imply an agreement in praesenti? It should be noted here that decedent lived and moved in two separate and distinct communities and circles of acquaintances. Although the case law does not anticipate or discuss such a situation, it is crystal clear in all of these opinions that a common-law marriage cannot be a secret thing, but demands that the parties hold themselves out to the entire world that they are husband and wife especially when there is no proof of an express agreement in praesenti. The issuance of a marriage license requires that a public record be made. Can a common-law marriage be valid if anything less than a holding out to all the public is required?
Decedent could not legally be Edith Davidson in Dayton and Mrs. John I. Burns in Sinking Spring at one and the same time. She was one or the other. If she and John I. Burns had been issued a marriage license and had been married by lawful civil ceremony, no question would have remained as to her marital status in Dayton or elsewhere no matter how she held herself out in that community. But, not having the benefit of clergy and the issuance of a lawful license, it was essential to establish a common-law marriage to hold herself out as the wife of John I. Burns. This, she not only did not do, she steadfastly maintained that she was not married to John I. Burns, that she was Edith Davidson and she was not married.
Though her purpose or motive is of no consequence, it is clear that she did not want to jeopardize her job or her retirement benefits or her social security. Is there some legally recognized marital status that will permit a person to treat themselves married for some purposes and not for others? This court thinks not. Marriage, whether statutory or common-law must exist for all purposes or fail in its entirety.
A common-law marriage can only come into being during the lifetime of the parties. It cannot come into existence upon the death of one of the parties. If decedent became the wife of John I. Burns at anytime during her life as the result of a common-law marriage, or a licensed civil ceremony, it would have been part of her legal obligation to change her company records, her social security status and other business records. The evidence shows that this was called to her attention and she consistently and persistently refused to affirm that she was married to John I. Burns.
Some of the testimony indicated the decedent had stated that when she retired, that she and John I. Burns were going to get married. There can be no common-law marriage if the agreement is made by words of future tense. Holmes v. Pere Marquette Rd. Co., 28 Ohio App. 297. The evidence, however shows that even after retirement she continued to represent herself as Edith Davidson.
This court is of the opinion that the evidence in this case falls short of proving the existence of a common-law marriage between decedent and defendant John I. Burns. Etter v. Von Aschen, 11 O. O. 2d 195, somewhat parallels the case at bar and the findings of this court and conclusions of law are not dissimilar.
It is the opinion of this court that defendant, John I. Burns, has failed to show by clear and convincing evidence an agreement in praesenti, either express or implied.
This court also finds that the evidence is not sufficiently clear and convincing to establish that they were treated and reputed to be husband and wife in the communities in which Edith Davidson lived.
It is therefore the conclusion of this court that no valid common-law marriage existed between the decedent, Edith Davidson and the defendant, John I. Burns, that decedent had no surviving spouse and that the lawful heirs and distributees of the estate of decedent are her three sisters, the defendants Pearl Ferguson, Viola D. Crum and Elsie D. Borton who share equally in said estate. Counsel for plaintiff will prepare and submit an entry in accordance with this opinion.