Informal Marriages

Question 1

What is required to create a common law marriage?

Answer 1

A marriage that is not formally solemnized. There must be a present intent and agreement to enter into a matrimonial relationship.
The Boswell Criteria: 
1) capacity to marry; 
2) Present Mutual agreement; 
3) Public recognition of marriage.

Question 2

What is required to prove a common law marriage exists?

Answer 2

The requirements can be inferred through cohabitation and community repute as husband and wife.
The spouses must be able to testify regarding 1) clear and convincing evidence and capacity to marry; 2) Presumption of marriage through constant cohabitation and reputation of marriage.

Question 3

What is a putative marriage?

Answer 3

A curative marriage when one or both parties did not know of an impediment that made their ceremonial marriage invalid.

Question 4

What is required for a putative marriage to be valid?

Answer 4

1) Good faith belief in the validity of the original marriage;
2) No reason to believe the defect existed;
3) Parties were ignorant of the impediments to the marriage;
4) Cohabitation is not required, but it is preferred.

Question 5

What is Marriage by Proxy?

Answer 5

A “stand in” for a party or participation via telephone. Usually only valid when done for a very good reason. Such as one spouse is off at war.

Question 6

What is Marriage by estoppel?

Answer 6

When husband and wife obtain an invalid divorce, then one spouse becomes remarried, then one who has taken a position regarding the marriage and has benefited from it, cannot later deny its existence.

Question 7

What is the last-in-time marriage presumption?

Answer 7

The burden is on the first spouse to prove that no divorce took place. The first spouse must prove that the divorce was invalid, therefore the second marriage cannot be valid.
It presumes the innocence and morality of the parties and protects the legitimacy of the offspring.