Pa Common Law Marriage – History – 3 – Origins
The origins of common law marriage are as varied as the misconceptions held regarding what actually creates one.
Their beginnings have been attributed to the informal marriages prevalent throughout European culture during the pre-Reformation.
From there, they have been traced through England, brought to the American colonies during its settlement by the English immigrants, and then followed across the United States during its development, where they continued their existence out of necessity due to the lack of access to clergy.
Pa Common Law Marriage – History – 3 – Criticism
Waves to abolish common law marriage began in the late 19th and early 20th centuries.
Some of the many and varied reasons cited in support of its abolishment included the growing emphasis on protecting both the institution of marriage as well as the protection of the increased wealth of the average citizen.
These trends continued throughout the 20th century, rising again amidst the creation of the many new governmental benefit programs in the latter part of the 20th century.
New Jersey abolished common law marriage by statute in 1955, and, in support of its abolition, the New Jersey Supreme Court stated that “[i]t was not without reason that our statute and similar statutes in other states have been popularly referred to as `Heart Balm Acts’.” The many abuses arising from common law marriages, with their effect on public morality, private property rights and the legitimacy of children, called for correction. Our Legislature dealt with such mischief in this act in sweeping and emphatic language, permitting no exception or evasion. “Despite its judicial acceptance in many states, the doctrine of common law marriage is generally frowned on in this country, even in some of the states that have accepted it.”
Accordingly, such a status is the product of an antiquated law and inattention to whether there is a need for change. However, despite these waves of change, Pennsylvania remains in the minority, being only one of twelve states that still recognize common law marriage.
Because of this, disapproval of the doctrine has grown harsher and more prevalent, with one of the major areas of concern being that of estate law.
It has been opined that “[common law marriage] puts in doubt the certainty of the rights of inheritance,” “opens the door to the imposition on estates of suppositious heirs,” and “allow[s] unprincipled claimants to convert illicit relationships into honest marriages, to their advantage, on spurious claims … against the estate of a decedent.”