This section is from the book "Popular Law Library Vol4 Torts, Damages, Domestic Relations", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
A common law marriage is a marriage entered into, without any marriage ceremony by the agreement of the parties to assume the marriage relation.
The requisites for the validity of a common law marriage are the agreement to assume the marriage relation and the assumption of such relation openly before the world.
A present contract for a common law marriage "per verba de praesenti", becomes binding at once; while a contract for a future common law marriage, " per verba de futuro cum copula", only becomes binding upon its consummation by sexual intercourse between the parties, and its validity even under such conditions is doubtful.
A common law marriage can be proved by general reputation, that is, by the parties holding themselves out to the world as man and wife. Such holding out must, however, be continuous and uninterrupted, acknowledging the relation at certain times and to certain parties, and denying it at other times and to other parties will not create a common law marriage.
When illicit sexual intercourse is proved to have existed between two parties, the presumption of the law is that the illicit character of the relations still continues.
The subject of common law marriages is discussed in the case of Duncan vs. Duncan, as follows:
"The proof of some of the most important of the facts above mentioned, rests mainly upon declarations made by Eliza, after the death of Alexander Duncan; and it is objected that evidence of this kind is unreliable and unsatisfactory. This is often, and perhaps, ordinarily so; but it is not always, or necessarily so, nor is it so in this case. She had ample means of knowing as to the facts of which she spoke; she made the declarations deliberately and repeatedly, under circumstances rebutting all suspicion of fraud or circumvention; and if they were otherwise, she had every apparent interest so to declare. The declarations of a party, made under such circumstances, often constitute the strongest and most satisfactory evidence.
"We desire that it shall be distinctly noticed that this case presents no question.as to the validity of a marriage contract (otherwise than in accordance with the provisions of our statute on that subject), per verba de praesenti, as if the parties being competent to contract the relation of marriage, the man shall say, in the presence of witnesses, 'I hereby take you for my wife;' and the woman shall say, 'I hereby take you for my husband.' The facts of the case make no such question; and we leave it where we find it.
"Nor is this a question as to the presumption of a marriage from reputation; or from circumstances, such as cohabitation, holding each other out as husband and wife, and the like. Such presumption, in the absence of evidence to rebut it, is often and properly made. But the question, as before stated, is simply this, whether a contract to marry per verba de futuro, followed by cohabitation as husband and wife, is in itself a marriage? For, in this case, the evidence of the fact is clear and explicit, and there is no room for presumption.
"The idea that a contract for a future marriage, followed by cohabitation as husband and wife, is itself a valid marriage at common law, seems to have obtained currency on the credit of remarks made by several elementary writers of distinguished learning and ability, and by certain judges of high character, speaking by way of obiter dicta, in cases in which this question was really in no way involved. But the better opinion now seems to be, that these remarks are unsupported by any case actually adjudicated and entitled to be considered as authoritative; and that such a contract never was a good marriage at common law, either in this country or in England; and the mistaken doctrine seems to have originated, either in the inad-vertant confounding of what might, in the absence of rebutting evidence, be good presumptive evidence of a marriage, with marriage itself; or from the fact that such a contract per verba de futuro, followed by cohabitation, was one of which the canon law, as administered by ecclesiastical courts in England, until restrained by statute, would enforce the specific performance.
"Chancellor Kent, 2 Com., 87, says: 'If the contract be made per verba de praesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesae.' In support of this proposition he cites no authority.
"Mr. Greenleaf, in his work on Evidence, Vol. 2, sec. 460, states the same doctrine in the same language, and cites Kent, Com., 87; Fenton vs. Reed, 4 Johns., 52, and Jackson vs. Winne 7 Wend. 47. Now, neither of these cases sustain the doctrine of his text. The former was a case simply where marriage was presumed, in the absence of evidence to the contrary from circumstantial evidence, such as cohabitation, reputation, acknowledgment of the parties, etc.; and the latter case was one of marriage per verba de praesenti.
"The same doctrine of marriage per verba de futuro is recognized in the remarks of Chief Justice Boyle in Demarsely vs. Fishley, 3 A. K. Marsh, 369, and in those of Cowen, J., in Starr vs. Peck, 1 Hill, 270. But neither of those cases involved this question, and the remarks of those learned judges were, therefore, incidental, and outside of the cases under consideration before them.
"Bouvier, in his institutes, Vol. I, p. 110, lays down the same doctrine as Kent and Greenleaf, in the same language, and cites Kent and Greenleaf, ubi supra, Fenton vs. Reed, and Jackson vs. Winne, before referred to, and also Cram vs. Burnham, 5 Greenl. 213; Hantz vs. Sealy, 6 Binn., 405;and Bac. Abr., Marriage, B.
"Cram vs. Burnham was a suit by Cram, upon a promissory note given to his pretended wife, with whom he was cohabitating as a wife, but, as the proof showed, really in a state of adultery. The court, in deciding the case, say, that if the proof had stopped with the proof of cohabitation, a marriage might have been presumed; but as the proof rebutted the presumption of marriage arising from the fact of cohabitation, the plaintiff could not recover in his own name, and have judgment against him. And in so far as the case has any bearing upon the question before us, its authority is against, rather than in favor of, the proposition which it was cited to sustain. Hantz vs. Sealy is equally far from sustaining the doctrine in support of which it is cited, except as to the validity of a marriage by words of contract in the present tense. Marriage or not, was the issue in the case. The words proved, on the part of the man, were 'I take you for my wife'; and the woman, being told that if she would say the same thing, the marriage would be complete, answered, To be sure he is my husband, good enough.' The court held that these were not words, on the part of the woman at least, of present contract, but had reference to the past, and did not constitute a marriage. The citation from Bacon's Abridgement is this: 'A contract in futuro, as, I will many you, etc., may be enforced in the spiritual court, but such contract either party may release; also, if either party marry another person, such second marriage dissolves the contract.' This citation, so far from supporting the proposition of Bouvier, goes only to show the correctness of the distinction above mentioned, to-wit, that such a contract is no marriage, but it is only a contract which might, at one time in England, have been enforced in the spiritual courts and for a breach of which the law now gives a remedy in damages.