Do Michigan Residents Recognize Common Law Marriage?
Unlike many other states, Michigan does not recognize the validity of common law marriages. In fact, it is well-settled law that common law marriages contracted in Michigan are void ab initio. The reasoning behind this is that common law marriage is classified as a contract under Michigan law, and, given the strong public policy reasons underlying the basis for regulations of marriages in Michigan, the court has held that marriages resulting from contracts are contrary to the strong public policy of this state which demands formal solemnities [and] the recording of evidence of the marriage license and certificate. Lynn v. Lynn, 4 Mich. App. 669, 669-670 (Mich. Ct. App. 1966).
Michigan previously provided abstract procedures outlining how a common law marital relationship was formed. These former provisions required a written contract signed by the parties in order for a common law marriage to be formed in the state of Michigan. However, the reasons provided by the court in Lynn were persuasive enough to deter courts from recognizing common law marriages formed contractually even when such contracts fulfilled all requirements under the former statute. As such , a large body of case law ultimately developed holding that, notwithstanding an agreement qualifying as a common law marriage under the former statute, at no time would the courts enforce, adjudicate or recognize a common law marriage in Michigan. See e.g., Smith v. Smith, 340 Mich. 387, 398 (1954) (promising a union with a woman is not a valid contract to marry); Hurst v. Hurst, 272 Mich. 50, 53 (1935) (a promise to marry in the future is of no effect); Deveny v. Baker, 190 Mich. 133, 139 (1915) (an agreement for a future marriage is void).
Eventually, Michigan repealed this former statute in 1957. MCL 551.3. While this statute fielded abundant criticism, ultimately altering the strong public policy of Michigan was a costly endeavor, as the courts summarily disregarded common law marriages as contracts pursuant to binding precedent. Nevertheless, Michigans shift away from common law marriages is non-retroactive, meaning couples who were legally able to enter into common law marriages prior to the statute being repealed are still permitted to have their marriages declared valid.
History of Common Law Marriage
A key concept to understanding common law marriage in Michigan is to view Michigan’s current laws on common law marriage in context of the history of the development of common law marriage in the United States.
According to Black’s Law Dictionary, a common law marriage (also called a "non-ceremonial marriage", "informal marriage", "marriage by habit and repute", "unregistered marriage" or "de facto marriage") is:
[A]n agreement between a man and a woman to be husband and wife, held together by the fact that they in fact live together in the manner of a married couple, without a marriage ceremony and without the formalization by a state license. Marriage has been regarded as a civil contract, something about which the parties should be free to contract without formalities, and marriage is a contract. Unauthorized or irregular marriage has been called common law marriage. Traditionally, in the United States, the requirements of a common law marriage have comprised a capacity to marry, a mutual present intent to marry (with conduct supporting such an intent) and a holding out to the public of a marital relationship. In some jurisdictions, cohabitation is the primary evidence of common law marriage.
The historical origins of common law marriage in the United States come from England by way of the Colonies. In England, the Church required couples to go through its system of marriage ceremonies administered by its priests, and those couples who married outside of the Church, without a license or the exchange of promises before a priest were considered "common law" as opposed to "canonical". In the Colonies, similar restrictions on marriage were imposed, as the Colonies were still part of England. This began to change as more settlers came to North America.
In the early 18th century, the Colonies were undergoing a great growth in the number of women who settled in North America. As women began to outnumber the men, many of the women who settled in the Colonies became "wives" without bothering with the formality of a marriage ceremony. The customs of the Colonies (mostly consisting of English settlers from the upper classes) were also beginning to conflict with the Church’s ceremony-based requirement for marriage. At this point, the Church began to lose its power over the Colonies, and couples began to marry at will and by their own methods, or not at all.
As a result, the concept of a "common law" marriage was developed by the Colonies, which eventually became the standard for the United States. While some Colonies continued to recognize the Church’s partnership in marriage, most of the Colonies simply dropped it and allowed couples to "make their choice", and common law marriage became the norm. While marriage licenses were still required, many Colonies simply did not enforce them or recognize them. These practices continued when the Colonies became States.
Michigan was founded in the early 1800s as part of the Northwest Territory, which had no inheritance laws and no recognition of marriage or divorce. In regard to personal relationships generally, the thinking of the time was that "[t]he individual rights of women and children had not been developed; the affirmation of those rights was regarded as feminine." Accordingly, couples who did not marry formally were tantamount to living in sin.
Not until after 1837 were the concepts of marriage licenses, divorces and civil divorces imported into Michigan, and in 1839, the first laws were passed that required certificates of marriage to be submitted to a clerk of the court (who would also be responsible for keeping all records). By 1840, the new Michigan marriage laws required all marriages to be certified, which made Michigan "the first state to require a certificate of marriage, by which all marriages were registered."
Beginning in 1867 until the early 1900s, marriage certificates became a requirement to obtain all things subject to the jurisdiction of the State: "[p]roperty sales, the issuance of all licenses, and the performance of all governmental functions depended on a presentation of a marriage certificate to officialdom." This "state marriage trend" followed the population to the agricultural districts, and between 1900 and 1940, most counties in Michigan required a marriage certificate (and certificate of a divorce) for property transfers, and "married women lost the right to make contracts without approval of their husbands" or "to own property which they inherited or received from a spouse." This practice of registries continued until the late 1970s when a federal ruling required that the equal rights of married women be honored, and Michigan began to recognize common law partnerships and allow women to make contracts and own property without a marriage certificate.
Alternatives to Common Law Marriage in Michigan
Although unmarried couples cannot legally achieve common law status in Michigan, there are several alternative legal options for defining their rights, obligations and responsibilities in a manner very similar to that of the married couple.
Cohabitation Agreements
A cohabitation agreement is a private contract between two persons sharing living space irrespective of their sex. Their agreement often covers issues such as property ownership and responsibilities, use of property in the event of a breakup, obligations to pay each other’s expenses, vehicles and division of other property in the event of a breakup or death. In the event of a breakup, a cohabitation agreement might be needed to settle a dispute over the property, finances, or other matters such as who gets to keep the dog they bought together. If one of the partners dies, a cohabitation agreement might be needed to separate the decedent’s estate from the one left behind. These agreements rarely go to Court but when they do they are treated like any other contract with consideration for the facts and circumstances surrounding its formation.
Domestic Partnerships
Domestic partnerships create a legal and personal relationship between two persons. Domestic partnership agreements are generally for heterosexual or homosexual couples, or for people who simply don’t want to get married. Domestic partnerships are currently recognized by the cities of Detroit, Ann Arbor, Berkley, Ferndale, Grand Rapids, Lansing and Oak Park. Domestic partnership agreements most effectively deal with custodial arrangements, death and disability issues, and support payments related to dependent children.
Effects of Moving to Michigan on Common Law Status
Many couples who have been together for an extended period of time and are considering a move to Michigan should be aware of how common law marriages are treated under Michigan law. Even though such relationships can be valid for purposes of property distribution upon divorce in states that permit them, their upheaval can cause confusion in Michigan about whether a couple is "common law" married or not. When these couples then engage in legal decisions about predicated marital status in Michigan — like estate planning, home purchase, or child custody legal decisions — the result is often a well-intentioned but dangerous misunderstanding of their own legal status. Contrary to popular belief, no state now in existence recognizes any marriage not formally solemnized after January 1, 1957 — the cutoff point for common law marriage in Michigan. See In re Barlow (Gillies) Estate, 202 Mich App 212, 217; 507 NW2d 757 (1993); James v Ritter, 94 Mich App 682, 683-684; 288 NW2d 473 (1979). Similarly, if a valid common law marriage has taken place prior to January 1, 1957, such a marriage remains valid until death, annulment, or divorce. The primary judicially-cognizable exceptions to these general rules are first, a common law marriage entered into in a state other than Michigan that continues to be recognized under the laws of that state, 1 See, e . g., MCL 552.101; McKrozky v Rader, 323 Mich 652, 653; 35 NW2d 317, 318 (1948). (MCL 554.22 in 1952 was cited as being the relevant statute that nullifies common law marriage in Michigan). 2 See, e.g., MCL 552.101; McKrozky v Rader, 323 Mich 652, 653; 35 NW2d 317, 318 (1948). and second, common law marriages that have arisen in Michigan prior to 1957 but that may be attacked on account of the legitimacy of the spouses. See, e.g. McKrozky v Rader, 323 Mich 652, 653; 35 NW2d 317, 318 (1948). Such invalidated marriages remain formerly valid, but they will carry the "taint" of illegitimacy unless and until they are blessed by annulment or divorce. See, e.g., McKrozky v Rader, 323 Mich 652, 653; 35 NW2d 317, 318 (1948). Moreover, apart from established "common law" relationships, it must be understood that "not every cohabitation [of unmarried persons] will make them ‘married’ under Michigan law. The rule requires cohabitation ‘as husband and wife.’ If parties reside together merely as companions, the relation will be viewed as meretricious and not as a marriage in law." McKrozky v Rader, 323 Mich 652, 653-654; 35 NW2d 317, 318 (1948).
Protecting Yourself If Not Married
While those in unmarried relationships do not have the same rights as married couples, there are several steps you can take to safeguard your legal and financial interest in the event that your relationship terminates. These may include:
Wills – – Since unmarried partners have no automatic legal benefits like insurance payouts, hospital visitation rights, or joint tax benefits, putting in writing your wishes to exclude others from your estate can be crucial. Without a will, each partner’s assets would be divided according to state law in the absence of surviving children or parents. A Draftsman can provide both simple and complex wills to meet your needs.
Power of Attorney – – Each state allows each individual to execute a Power of Attorney (POA) document that authorizes another person to act for you. Steps should be taken to ensure that once one partner has been granted POA, no one can alter the effect of it. For example, hospitals only permit visitation of spouses and immediate family through a patient’s designated POA. If no POA is in place and court proceedings are necessary to establish a POA, much time and expense can be added to the process. Similar problems may be encountered with gifts to be made by the partner, tax laws, health coverage policies, etc.
Cohabitation Agreements – -There are many types of cohabitation agreements, though few of them are as comprehensive as prenuptial agreements established between husband and wife. Cohabitation agreements may address most issues taken into consideration when assigning rights to a surviving spouse.
Expert Analysis and Legal Perspectives
A recent opinion from a Michigan Third Circuit Court highlights the disconnect between prevalent perceptions of common law marriage and actual legal requirements for common law marriage. In a child support matter where the father claimed common law marriage with the mother, the court held that there was absolutely no evidence of a common law marriage. In its decision, the court quoted an Amicus Brief by University of Detroit Mercy School of Law Professor Cheryl Anderson, calling for reform in the law governing cohabitating couples and the treatment of common law marriage . Professor Anderson’s brief rejected claims that cohabitation promotes marriage, indebt people with debt to be married, or that marriage and cohabitation are interchangeable. The Professor noted that sociological evidence shows less depression among cohabiting couples and less domestic violence in their relationships. She cited other studies indicating that cohabiting couples have higher rates of cohabitation dissolution. Professor Anderson posits that law reform to acknowledge the commitments made by cohabitating couples is warranted.