What Did I Commit to: A Celebration or a Marriage?

Posted: September 14th, 2015 by

Jennifer Dumin, The Legal Intelligencer (online)

Throughout America’s history, same-sex couples have stood before their families and friends and made declarations of love and commitment. I have attended commitment ceremonies over the last two decades that ranged from a dozen people standing in a circle in the backyard, to a service that included a pastor, a rabbi, two brides in pristine white wedding gowns and over 300 guests.

Sabrina Maurer and Kimberly Underwood held a commitment ceremony in New Jersey on Sept. 2, 2001, before relocating to Doylestown the following year. At the young age of 44, Underwood died in 2013, six months to the day before same-sex marriage was legalized in Pennsylvania. After Underwood’s death, Maurer experienced a plethora of disadvantages due to the couple’s nonmarital status: “I was denied life insurance payment, I was denied survivor benefit, I had to pay inheritance tax on 50 percent of joint checking, joint savings [and] joint investment accounts,” she stated in a NewsWorks article. Presented with this case, on July 29, Bucks County Court of Common Pleas Judge C. Theodore Fritsch Jr. signed a declaration of the validity of marriage, finding that the couple had entered into a valid and enforceable marriage under Pennsylvania common law. Despite the fact that New Jersey abolished common-law marriage in 1939 (N.J.S.A. 37:1-10), Fritsch ruled that the couple was married under the laws of Pennsylvania from the date of their commitment ceremony in New Jersey, until the time of Underwood’s death. Fritsch found:  “Their marriage is valid and enforceable, and they are entitled to all rights and privileges of validly licensed, married spouses in all respects under the laws of the commonwealth of Pennsylvania.”

As my colleague Lisa Shapson wrote in her column published May 1 in The Legal, “Validity of Common-Law Marriages,” “Common-law marriage is the concept that a state recognizes couples who never went through the process of obtaining a marriage license provided each party had the capacity to enter into a marital relationship – i.e., were of legal age to marry, not married to anyone else – and each party mutually consented to be husband and wife and held themselves out to the community as married.” Although Pennsylvania abolished common-law marriage effective Jan. 1, 2005 (23 Pa.C.S. Section 1103), unions that have met the statutory requirements for common-law marriage entered into prior to that date are valid.

Family law practitioners in Pennsylvania encounter questions related to common-law marriage when a client seeks assistance in dissolving a relationship that began before common-law marriage was abolished. Armed with evidence that may include proof such as cohabitation, commingled finances, and having children together – but which must include proof that the couple explicitly expressed words of present intent to be married – we file a divorce complaint, as we would for any other marriage. If we anticipate that the common-law marriage will be contested, as is often the case when an economically disadvantaged party is attempting to establish marriage for the purpose of securing property and support rights, it is good practice to file a motion requesting declaratory judgment of the validity of the marriage. When there is no objection from either party regarding the validity of the common-law marriage, e.g., when one party is deceased, as was the case before Fritsch, the court will find that there was a common-law marriage if presented with sufficient evidence.

Notably, at the time of Maurer and Underwood’s commitment ceremony in New Jersey in 2001, same-sex marriages were not legally recognized by any state in the country. Same-sex marriage did not exist in New Jersey until Oct. 21, 2013. Therefore, at the time of their commitment ceremony, neither party could have believed she had entered into a legal marriage.

On May 20, 2014, U.S. District Judge John E.Jones III of the Middle District of Pennsylvania ruled that Pennsylvania’s 1996 statutory ban on recognizing same-sex marriage was unconstitutional, making Pennsylvania the 19th state to sanction same-sex marriage. Jones found:  “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the commonwealth.” Prior to this ruling, same-sex couples were considered legal strangers under Pennsylvania law. Throughout the decades leading up to this ruling, these couples had to seek alternative measures to protect themselves, due to the inability to obtain recognition of their relationships as marriages under the law. Attorneys drafted documents such as cohabitation agreements enforceable in civil court, and assisted with death planning measures taken to protect individuals in these relationships to the fullest extent possible under the laws at the time. Of course, these options were, and continue to be, woefully inadequate when compared with the rights and responsibilities attendant to a legally recognized marriage.

Same-sex unions have existed at least since the beginning of recorded history. The first public gay wedding in the United States was in 1968, and in 1970, the first lawsuit seeking legal recognition of a same-sex marriage was filed. In 1987, during the week of the Second National March on Washington for Lesbian and Gay Rights, there was a mass celebration in front of the IRS building known as “The Wedding,” involving about 2,000 same-sex unions. The use of the term “commitment ceremony” as applied to same-sex couples has existed at least as far back as 1990, when it was used both at Hawaii’s first gay pride parade and at a Methodist church ceremony in North Carolina. Commitment ceremonies were popular in the late 1990s and throughout the 2000s.

It is difficult to imagine that these couples anticipated that their commitment ceremonies would eventually be recognized as the beginning of a legal marriage. Indeed, the reason many of these couples rushed to the courthouse after the laws changed in New Jersey and Pennsylvania was because they knew that the vows they had exchanged at their commitment ceremonies did not create legal marriages. So, what about those who have decided not to legally marry? Is it reasonable for one of them to later argue that they are married? Additionally, as a family law attorney who routinely prepares prenuptial agreements for opposite-sex couples who are about to get married, I wonder if the same percentage of same-sex couples might have taken similar measures had they believed they were committing to a legal marriage.

Fritsch’s ruling, which has created quite the buzz amongst family law attorneys, raises the question:  What is the legal relationship status of the same-sex couples in Pennsylvania who had commitment ceremonies prior to the abolition of common-law marriage, at a time when there was no recognition of same-sex marriage? Are they legal strangers, married couples, or something in between? This remains an open question.

Stay tuned.

Reprinted with permission from the SEPTEMBER 14, 2015 issue of THE LEGAL INTELLIGENCER (online). © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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