Chapter II
ARE WE MARRIED, OR WHAT?
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
| Atty/Client | Contents | Jurisdiction | Grounds | Children | Sep Prop | Mar Estate | Alimony |
| Fees | Extrajuris | Procedure | Settlement | Trial | Misc | Shortcut | Moving On |
Marriage defined Common Law Marriage Does it matter?
Who can marry? Invalid marriages Annulment Any red flags waived?
"Divorce," in some states called, "dissolution," is the name of the legal remedy for terminating a marriage. A district court's decree (judicial pronouncement) is the only way that a person's marital status can be concluded before the death of one of the spouses. Only by that decree is "single" status resumed.
But, "divorce" presupposes the existence of a valid marital relationship between a husband and wife. If a valid marital relation does not, in fact, exist, then there can be no "divorce," because there is no "marriage."
Most people who think they are married are. But, some are not, and still others who do not perceive themselves to be married are. Consequently, without exploring all the possibilities in depth, this chapter touches upon some of the more common possibilities.
What Is Marriage? Top of Chapter
A statute defines "marriage" to be, "a personal relation arising out of a civil contract to which the consent of the parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, and maintained or abrogated as provided by law." Under Oklahoma law, this relationship may come into being by following certain "legal" procedures--get a license, a blood test, an official to perform the ceremony and go through the ceremony by making "I do" promises. Or, marriage may exist by operation of the "common law" -- agree to be married, skip all the foregoing procedures and commence to live out the contract.
Common Law Marriage Top of Chapter
Recalling that marriage is a contractual relationship, the essence of which is the parties' agreement to be husband and wife, the critical fact is that the parties have made an implicit or explicit agreement to do so. The agreement requires no writing at all. I have never seen a written agreement of this type. The oral agreement can be, and usually is, as simple as this: "Let's be married!" "O.K." Then, the parties begin living together, thereby executing their contract (although they may have already commenced to do so). It is that simple. They are then husband and wife.
The length of time that parties live together after their marriage has nothing to do with whether they are married. Whether the amount of time be a heartbeat or twenty-nine years matters not at all. When you're dead you're dead. When you're married, you're married. It doesn't matter how long!
By the same token, people can live together all their lives and not be married. If they never agreed to be married, or that they "are" married, they are not married.
Is an "express" agreement - where words such as those in the dialogue above are exchanged - absolutely required? Might an "implied" agreement satisfy the requirement? Oklahoma Supreme Court case law is unclear on the point, so, the only informed answer I can give is, "I don't know." From a lawyer's perspective, a sound argument may be presented to answer the question either way. Remember -- lawyers do not make the law. Legislatures and courts do that. Until the Oklahoma Legislature or the Oklahoma Supreme Court answers this question, a certain answer is impossible.
What if one party says there was an agreement but the other party denies it altogether? In that event, a "question of fact" is present. In divorce cases, judges resolve questions of fact. It is at this juncture that evidence indicative of, or contradictory to, marital status, becomes important. How did the parties' file their income tax returns - married or single; how did they introduce themselves to others; were children born to their relationship? These and other types of information may be utilized to prove, or disprove, the existence of a marital relation. No single piece of information necessarily proves, or disproves, the issue. However, it is important to know this: The "burden of proof" - the legal obligation to prove the point -- is on the person who asserts the existence of the marital relation. So, it isn't enough for a person merely to claim that a marriage exists. That person must prove the issue with evidence, if it be disputed by the other party.
Why Does it Matter? Top of Chapter
Concerning child-related issues (paternity, custody, visitation and support), it usually doesn't. In most circumstances, those issues will be resolved according to the same legal standards and principles whether the child's parents are married or single.
However, concerning division of the "marital estate" and possible entitlement to spousal support following divorce, it matters a lot. Property acquired by either spouse during marriage is "marital" property, no matter which spouse owns it. For example, a piece of real property purchased by the husband during marriage from money he earned during marriage is marital property subject to division between the parties upon divorce. So is the wife's retirement account which she accumulated during marriage at her employment. And, upon divorce, assuming that she can persuade the court that she is otherwise entitled, the wife can receive support alimony upon divorce or legal separation.
However, if a marital relation is not proven, there can be no "marital estate" to divide and, under the facts just mentioned, no existing Oklahoma statute or Supreme Court decision will entitle the wife to a division of the real property the man purchased, or the man to an interest in the woman's retirement account, or the woman to any claim at all for post-relationship support. Possibly, the Legislature may in the future enact statutes to deal with such circumstances, or, perhaps a litigant may persuade the Oklahoma Supreme Court to adopt a "palimony" or similar theory to provide legal relief akin to that granted in divorce. But, as of now, it does not exist in Oklahoma.
And, upon the death of a spouse, under the laws concerning intestate succession, the surviving spouse is entitled to inherit as such. Social Security and other governmental benefits exist for surviving spouses. Mere girlfriends and boyfriends get nothing at all.
Who Can Marry? Top of Chapter
Only persons of opposite gender may marry in Oklahoma. Another statute prohibits and declares marriages between ancestors and descendants (i.e., between parents, children, grandchildren, etc.) and certain relatives (step-parents and children, aunts/uncles and nieces/nephews, brothers and sisters and first cousins) illegal and void. Still other statutes regulate marriages between minors (persons under 18). And, since polygamy is prohibited by law, a person may only be married to one person at a time. Except by this passing note, this chapter does not further develop any of these prohibitions.
What If We Did it Anyway? Top of Chapter
It depends. Some "marriages" are absolutely "void" - they do not and cannot exist under the law. Incestuous relationships described above fall into this category. The legal remedy for such relationships is not divorce, it is annulment.
But, some relationships which cannot be marriages at the onset of the relationship can become valid marriages upon the legal impediment to marriage being removed. For example, if one of the parties was married to someone else at the time of the second "marriage," at that time, the second "marriage" was a legal nullity. However, if the real marriage were later concluded by divorce and the second relationship continued after that divorce, the second relationship would most probably ripen into a valid common law marriage. This not too infrequently occurs in those instances in which a person recently divorced "marries" before six months have passed from the decree of divorce. Even if the second "ceremonial" marriage would be invalid, after six months pass by and the parties continue to live together, their relationship will probably become a valid common law marriage.
Annulment Top of Chapter
Almost no statutes exist in Oklahoma concerning annulment. Only a handful of Oklahoma Supreme Court decisions speak to it, the most recent being in 1947!
"Annulment" is a remedy borrowed from English ecclesiastical courts at a time in which divorce could not occur but by which citizens could obtain an official declaration that they were never married in the first place because of some pre-existing impediment. Some say that Henry VIII used, and abused, such a procedure. Annulment through "private" ecclesiastical tribunals continues to be important to many of our citizens, for religious and personal reasons.
In the public sector of our civil courts, annulment also finds an occasional use. Like in ecclesiastical courts, a decree of annulment is simply an official declaration that two peoples' apparent marriage never existed -- it was a legal nullity and so never really existed.
Annulment is not generally used to conclude marriages which are presumed to be valid, although certain narrow exceptions exist, such as to avoid the marriage of an incompetent person.
More often, it is used to declare that void marriages never really existed. Even though it is not required than a decree of annulment be obtained to declare a void marriage to be a legal nullity, as an Oklahoma Supreme Court opinion notes, "It is expedient for the good order of society that the nullity of such a marriage be ascertained and declared by a court of competent jurisdiction."
Such a decree may be useful in giving peace of mind to a person in doubt as to their marital status. From a more practical perspective, it may impact upon rights to claim (or dispute) spousal inheritance rights and possibly governmental and other entitlements, if the existence or non-existence of marital status is important.
And, in an annulment procedure, temporary spousal support and attorney fees are legally permissible, even though spousal support cannot be allowed after the decree. And, and an equitable division of property jointly accumulated by the parties while living together as husband and wife can be awarded in an annulment action.
Child-related issues (custody, visitation and support) are not treated differently than in divorce, whether a "marriage" be declared to be a nullity or not.
Any Red Flags Waived? Top of Chapter
The contents of this chapter will not affect the vast majority of persons who are contemplating divorce. Experience with family law teaches one certain truth: There really is no such thing as a "typical" family law problem, which is one of the things that makes this work so interesting.
If any of what has been said makes you wonder about whether some part of it applies to you, you should mention it to your attorney promptly.
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