Common Law Marriage In Kansas Explained

What is a Common Law Marriage

Common law marriage has become more well-known in recent years because of the growing number of same-sex marriages, and how those unions are recognized for purposes of property division, maintenance, etc. The term common law marriage is somewhat of a misnomer because it does not require a contract in writing, nor does it require a document to reflect the parties intent; instead, its existence is often inferred by the Court. In Kansas, in order establish a common law marriage, it must be shown that the union occurred "in the face of circumstances indicating the parties intended to make the relation of husband and wife their permanent relationship." The following feats must also be shown or alleged:

• An actual and mutual consent.
• Parties must have capacity to enter into a marriage. Cotenancy or consanguinity are probable reasons to challenge capacity , but these issues are generally avoided today.
• Parties must hold themselves out as married in the community.
• Parties must cohabitate after the marriage had become established (this factor being the most difficult to show at times).
• Parties must treat one another as husband and wife.
• Parties must marry with the exception of obtaining a license or other statutory step.

Historically, the concept of common law marriage can be traced all the way back to the Scottish law concept of de facto marriage, which recognized longstanding relationships of virtually every kind. Engeland, Recognition of Extra-judicial Agreements Between Co-habitants, 19 Ariz.L.Rev. 285, 293 (1977). The practical need for enforcement of property and support claims between spouses or their children prompted courts to sanction informal economic unions. See Simmons v. Simmons, 566 S.W.2d 761, 764 (Mo.Ct.App.1978). However, because de facto marriages were regulated by the courts, the parties’ personal subjective intentions were not controlling upon that relationship. Id. at 293-94.

Kansas Common Law Marriage Statute

Kansas does not recognize common law marriage except in very limited situations. For most people, a common law marriage cannot be created in Kansas and in fact, the good news about that is there is no such thing as a common law divorce in Kansas either. If you feel you might have formed or attempted to form a common law marriage in Kansas, you can breathe a sigh of relief, it is highly unlikely that such a claim will be successful.
Kansas Statute K.S.A. 23-2501 clearly states:
(a) Except as provided in subsection (d), no agreement, no consensual act or acts, nor any form or combination of agreement, act or acts shall be construed as a marriage contract under the common law in this state. No person shall be deemed or held to be married by common law marriage in this state.
There are three circumstances, however, that allow for the possibility of a common law marriage based on case law.
The first involves a common law marriage being attempted prior to 1/1/1900. There is a common law basis in this regard but it seems to me that most people attempting to form a common law marriage today in Kansas will do so after January 1, 1900, which cuts out this possibility in my opinion. That does not mean some people still do not try this approach, but it would seem a difficult argument to make based on Kansas law. The bottom line is that it seems most common law marriage attempts in Kansas fail.
Another circumstance involves common law marriages created before a change in the law in 1907. The 1907 law purported to allow a common law marriage to be created as long as common elements existed (e.g. cohabitation, holding out to be married or accepting the status as husband and wife, etc.)
The latest beat on common law marriage may come from the federal government.
More recently, the United States Department of Labor has issued guidance indicating that they will recognize a common law marriage if the state where the employment relationship arose recognizes the validity of a common law marriage. Whether Kansas fits within that category remains to be seen.

Requirements To Prove A Common Law Marriage in Kansas

Although the legal existence of a common law marriage in a jurisdiction is to be assumed, Kansas law provides that to be valid and recognized, the parties must establish the following:
(a) Mutual consent or agreement to enter a valid marriage contract.
A common law marriage in Kansas cannot be established unless the agreement to marry is mutual and there is an intent to presently enter into a marriage relationship. However, this intent and agreement can be inferred from conduct or acts which constitute a sufficient agreement to enter into a present marital relationship and can be implied from proven facts. Once the elements of consent are established, intent may be inferred from defendant’s conduct toward plaintiff in calling her his wife and the conduct of third persons toward plaintiff in addressing her as a married woman.
(b) Cohabitation or living together as husband and wife.
Although cohabitation is required, it does not have to occur under one roof, and proof of a physical or sexual relationship is not required. The relationship can be established by evidence of a person’s holding out as husband and wife or treating each other as husband and wife. Cohabitation may be inferred from the cohabitation of the parties in the houses of family, community or of saw-mills where they were employed. Cohabitation and patronymic relationship establishes presumption of sufficient agreement to marry.
(c) Holding out to the public as husband and wife.
The parties must hold themselves out as being married to each other. Such holding out can be shown by the use of the term "husband" and "wife" in business interactions, exchange of letters following a certain address, and goodwill cards indicating the same address. It is possible for the public to acquire the belief that the parties hold themselves out as husband and wife through general reputation or the conduct of the parties toward each other and in their community and performances of other acts appropriate to, or normally done by married persons. In other words, third parties do not have to directly observe the two parties acting as if they were married to establish that they do so.

Pros and Cons of Kansas Common Law Marriage

Understanding common law marriage can help spouses identify which circumstances will be most beneficial to them in the long term. However, common law marriage can also be detrimental to some couples. One benefit of a common law marriage is that there is no need to go through the formal process of obtaining a marriage license. Kansas provides a survey entitled "Marriage Licenses and Certificates from 1855 to 1973" that is a helpful tool in researching when and where marriage licenses were issued. For many people, it would be difficult processing through the complex requirements of filing for a marriage license. Using common law marriage, two people can be considered legally married (in most states other than Kansas) for purposes such as taxes, ownership of property, etc.
Another benefit of common law marriage in Kansas is that it helps people obtain benefits from a spouse who is unavailable, including health benefits or membership in separate areas such as country clubs, where the person is unable to join without a "legal" spouse. Also, a common law marriage allows a spouse to avoid taxes in anticipation of becoming a "legal" relationship, which would be taxed.
There are also drawbacks of common law marriage in Kansas. Because of the precedent in Michael v. James, spouses are not considered married until the divorce is final if one of the parties moved to another state but continued to live together. This could mean that a judge must decide what assets need to be divided during the time the spouses were together in Kansas (for example) and later what assets were collected in another state, requiring more time and possibly more lawyers. This could be particularly burdensome when the couple has separated and is opposing each other. If you don’t remember the day that you got married, it may be difficult to prove the years you were actually married as well. In addition, it may bring up the decision of resolving how the parties (and/or the children) will be identified. If both parties have different last names, they can agree on which name to use when referring others to the family. If a child is born out-of-wedlock, and not legally legitimized by being married to someone at the time of the child’s birth, the court may be bogged down in determining paternity, delaying the process and increasing costs.

Rights of Partners in a Common Law Marriage

In Kansas, common law marriage applies to those who establish themselves as a couple with the intention of being married, whether or not there is an actual wedding. Kansas law defines common law marriage as a "relationship existing between two persons who live together but are not legally married and who have announced to the world that they are married to each other." The law is clear that mere cohabitation or co-ownership of property is not enough to create such a relationship. Cessna v. Heberer, 204 Kan. 722, 465 P.2d 467 (1970). Several factors may be considered when determining a common law marriage. Such as, are the couple living in a place associated with married couples? Do they have joint finances? Do they hold themselves out as a married couple to others?
The same legal rights and responsibilities apply to partners who are "married" under Kansas law and those who have a common law marriage. For example, a spouse may make financial decisions for the other spouse if the other is incapacitated. A spouse has a right to an elective share of the deceased spouse’s marital property. If a spouse has a dispute with a third-party, the other spouse may be required to participate in that litigation.
In Kansas , a spouse has a right to inherit from the spouse’s estate whether or not there was a will. A surviving spouse in Kansas is entitled to the first $25,000 of the estate plus one-half of all property in excess of $50,000.
The second thing that parties to a common law marriage need to know is that Kansas law does not provide for common law divorce. This means that you do not have the automatic right to divorce without first formally obtaining a divorce. Prior to July 1, 2011, obtaining a divorce from a common law marriage required a lawsuit. However, on and after July 1, 2011, a common law marriage could be ended in a "certified divorce action," which was a simpler process. The USD 4995, L. 2011, ch. 92, sec. 1 & 2. Currently, a common law marriage can be dissolved without a lawsuit. There is no case docket to determine custody and property issues between partners. But, it is possible for a partner to file a Petition in district court, requesting a declaration that the couple was married under common law. The court can then issue the declaration without requiring an adversarial hearing (i.e. a hearing where both partners testify). In this process, the parties set their own terms for custody, support and division of property.

Ending a Common Law Marriage in Kansas

Dissolving a common law marriage in Kansas is unique to the state and should be done with the assistance of an attorney who practices family law. A marriage may be dissolved or terminated only by the entry of a decree from a judge in a court in a divorce proceeding, who has acquired jurisdiction over both parties to the action pursuant to K.S.A 23-2511 et seq.
Divorce law in Kansas is generally applicable to proceeding to dissolve a common law marriage. A divorce decrees terminate the common law marriage and award property, debts, spousal support, and, if the parties have children together, child custody, visitation, and child support.
A marriage is voidable when a party was mentally incompetent to marry at the time of the marriage ceremony. A marriage is void ab initio (from the beginning) if either party was under the age of consent at the time of the marriage and no subsequent validation of marriage by the parties occurred after reaching the age of consent. In both instances, a divorce proceeding is not required, and a lawsuit seeking a judgment declaring the common law marriage invalid is filed.
Common law marriage in Kansas cannot be terminated by a court order, or through the act of one of the parties. A common law marriage can only be terminated when the court enters a decree terminating the marriage, just like any other marriage.

Myths Surrounding Common Law Marriage in Kansas

One of the most common misconceptions about common law marriage in Kansas is that living together for a certain period of time, or holding yourself out as being married, can somehow create a marriage. In fact, no action by the parties could create a common law marriage unless the parties actually agree that they are married. Even then, there is a requirement that the marriage be contracted in Kansas.
Another misconception is that common law marriage is the same as domestic partnership or cohabitation. As noted above, the key difference is that a domestic partnership or cohabitation may not be intended to be a marriage. In contrast, a common law marriage is intended to be a marriage (though there may be various legal disputes over the parties’ intent).
Another misconception is that there is a time period required to create a common law marriage in Kansas. Again, this is incorrect. A common law marriage may be created in one day, or it may take years. It depends on whether the parties agree that they are married.
In summary, the common law doctrine is full of urban legends. The only way to know if you have a common law marriage is to consult with a qualified Kansas divorce attorney.

Considerations for Kansas Couples

Even though a couple can marry and live together as if they were married, without obtaining a marriage license in Kansas, there are some risks involved with being in a common law marriage. A couple in a common law marriage can begin living together as if they were married (including holding themselves out as married) but to enjoy the full benefits under the law of a marital relationship, they need to take the following steps:

• Contact an attorney who specializes in family law to discuss the matter.
• If you need legal status in a hurry , one option is to obtain a divorce decree from a pro se divorce clinic. A pro se divorce clinic is inexpensive and quick and can be found in most areas of Kansas.
• If you have children, it is important to get legal advice as to your rights in regard to custody and child support issues.
• Communicate with your present or former spouse any legal status, financial, and other personal information that may be needed in the event of a legal challenge.
• To show evidence of a common law marriage and for other legal matters, the couple should continue to hold themselves out as a married couple.