Common law marriage in Utah

By |2018-05-13T19:52:51+00:00April 29th, 2018|Family Law|0 Comments

When a man and a woman live together as man and wife, but never go through a marriage ceremony, it is not unusual when they break up for one of the parties to claim that there has been a common law marriage. Although Utah recognizes common law marriage, in Utah, the phrase “common-law marriage” is misleading.  The phrase suggests that this form of marriage has been established by common-law or judicial processes.  In fact, in Utah common-law marriage is governed by a statute, and the party claiming a common-law marriage must show that he or she has complied with all of the requirements of the statute.

Common-law marriages in Utah are governed by the terms of Utah Code Ann. §30-1-4.5.

That statute reads:

(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:

(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;
(c) have cohabited;
(d) mutually assume marital rights, duties, and obligations; and
(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.

Establishing common law marriage in Utah

A party attempting to establish a common-law marriage must establish all of the elements listed in §30-1-4.5(1).  A failure to establish even one of these elements is fatal to the claim.

Pursuant to §30-1-4.5(1)(e), one of the elements that the proponent of a common-law marriage must prove is that both the husband and the wife held themselves out as husband and wife.  The two parties need to tell other people that they are husband and wife and fill out official documents as husband and wife.  The party claiming a common-law marriage will have to provide substantial evidence that the parties have held themselves out as husband and wife.

Utah common law case: Hansen v. Hansen

One of the issues that is most often litigated is whether the parties have a general and uniform reputation.  This issue was discussed at length in Hansen v. Hansen, 958 P.2d 931 (Utah App. 1998). In Hansen, the parties had been married and then divorced.  Following the divorce, the parties began living together again.  After they began living together again, they went on a number of trips with friends and family.  During those trips, they did not refer to each other as husband and wife.  The trial court also found that the parties’ friends believed that they were living together, but not married.  After the parties broke up, the man filed a divorce action.  His divorce action was based on his claim that, between the time of the first divorce and the final breakup, the parties had entered into a common-law marriage.  Based in part on the evidence that the parties’ friends did not believe they were married, the trial court found that there was no marriage.  The man appealed.

On appeal, the Utah Court of Appeals stated:

Section 30-1-4.5(1)(e) states that a person claiming marriage under the statute must establish the couple has “acquired a uniform and general reputation as husband and wife.” . . . [A] “partial or divided” reputation of marriage is insufficient.

The fact that the parties’ closest friends did not consider the two married, in conjunction with the fact that Mr. Hansen and Ms. Hansen were not consistent in holding themselves out as married to the rest of the world, negates the establishment–under any standard of proof–of the statutory requirement that the couple “acquired a uniform and general reputation as husband and wife.”

Most claims of common law marriages in Utah fail, because the burden of proving a common-law marriage is so high.  It much easier to just get married than to claim a common law marriage after an intimate relationship breaks up.

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