Common Law Marriage in West Virginia: What You Should Know

What is a Common Law Marriage?

Common law marriage refers generally to a de facto marital relationship created prior to the enactment of statutory provisions which in the various jurisdictions now either require mandatory solemnization of marriages by a person vested with the appropriate authority (for example, a priest, judge or justice of the peace) or provide for registration of marriages with public officials. The essential elements of a common law marriage are competent parties, a mutual agreement or consent of the parties to be married, a present and actual capacity to enter into the matrimonial state, and cohabitation. Common law marriage requires a holding out of each party as the husband or wife of the other to the public.
The doctrine of common law marriage and cases involving the subject have existed in England and America for centuries. The first reported American decision regarding common law marriage is Kilgore v. McCauley , 2 Ind. 252 (1820).
Although the historical background of the common law marriage doctrine need not detain us here, it will be useful for readers to note some general characteristics common to all jurisdictions recognizing the concept. First, the essential elements of a common law marriage have remained constant throughout American jurisprudence and have not been modified by judicial or legislative trends in all jurisdictions. Second, the essential elements have remained constant within each common law jurisdiction. Third, a large majority of jurisdictions having considered the question agree that an agreement between the parties to cohabit as husband and wife is an essential element of a valid common law marriage.

The Legality of Common Law Marriage in West Virginia

As it stands now, Common Law Marriage is not recognized in the State of West Virginia. A West Virginia Statute, West Virginia Code section 48-2-106, provides: "It is hereby declared to be the public policy of this state that no common law marriage shall be recognized as valid after the first day of January, one thousand nine hundred and nine. After that date, a common law marriage is invalid and no longer can be entered into in this state."
However, through the case of State ex rel. Morris v. McGraw, (S.E.2d 759, 762) the Supreme Court of Appeals of West Virginia has issued that despite this Code provision, a couple’s rights and reliance upon the validity of their common law marriage will be protected.) Justice Workman wrote in Morris v. McGraw: "The majority of states have abolished common law marriage, and those that continue to recognize it do so subject to strict requirements. The widely adopted Restatement (Second) of Contracts defines ‘marriage by agreement’ in the following manner: A marriage by agreement is an express or implied agreement that holds out the parties as husband and wife…Marriages by agreement are, in modern times, relatively few in occurrence. Put in the simplest form, a marriage by agreement is a marriage that may be established by the separate but mutual declarations of the parties (i.e., statements to the effect that the parties are married), which declarations may or may not have been made in the presence of a third person.

How it Works Legally

Like registered marriages, common law marriages afford spouses a number of property rights, liabilities, and obligations under West Virginia law. These include the division of marital property in a divorce, direction of healthcare and financial decisions in the event one spouse is incapacitated, and other important considerations that will be explored below.
Unfortunately, common law married couples do not automatically enjoy these rights and obligations in West Virginia. In fact, until the marriage is recognized as valid by court order (such as divorce proceeding or the filing of a new divorce action by one of the parties), common law couples do not have the right to claim these benefits.
Once recognized, how do some of these rights play out? For example, common law spouses own a share of any increase in value in the marital estate (any property acquired after the commencement of the marriage other than by gift or descent) from the date the couple established a common law marriage. Thus, any property owned by either party prior to the common law marriage would not automatically be divided and both spouses would be entitled to half the increase in value of each property held in the couple’s joint name after the marriage was established.
The same principles would also apply in the distribution of property in a divorce proceeding, including property (like retirement accounts) that is owned by only one of the parties. A court would divide the property based on how long it was owned by the couple and how long it was owned by the spouse alone, even if the property is not jointly owned. However, a court will not distribute any property that a spouse individually acquired or received by gift or descent from a third party before the common law marriage is recognized.
When performing an equitable division, a court will not necessarily divide the marital estate equally. Rather, the court will consider several factors when determining the distribution of property. In particular, the court will look at the contribution of each spouse to the increase of value of the marital estate, the parties’ abilities to earn and acquire property in the future, the age of the parties, their health, and any other facts relevant to the monetary situation involved.
Another right common law spouses will enjoy is the ability to make decisions when a spouse is incapacitated. And this right is automatic and does not require court order in West Virginia. Designation of a person to make decisions for another person is called a Durable Power of Attorney ("DPOA"). In West Virginia, if a spouse has a DPOA that names the other spouse as the surrogate decision maker, the surrogate assumes consent authority with respect to the principal’s (the person whom the DPOA is for) health care and finances, unless specifically limited by the document itself.
Under a general DPOA, a surrogate can make day-to-day decisions for the principal and is entitled to access the principal’s files and accounts and generally do all things that the principal could do himself or herself. Further, a surrogate is not required to obtain a court order before acting. However, the surrogate is required to keep and present upon demand a full and accurate record of any expenditure of funds made by the surrogate on behalf of the principal. Responsibilities of the surrogate under a DPOA do not extend to the sale or gift of the principal’s personal property unless specifically authorized by the DOPA document.
It should be emphasized that the DPOA does not "give" a spouse the right to make these decisions; the DPOA creates a legal right that previously did not exist. If a husband and wife do not have a DPOA and one spouse becomes incapacitated, the other spouse would have to petition the circuit court for the right to make decisions for that individual. Such litigation would be lengthy and expensive. Under a properly executed DPOA, the right to make those decisions automatically passes to the surrogate when the principal becomes incapacitated.
At the present time, West Virginia has recognized common law marriages only from other states, but the requirement of having entered into the marriage agreement in another state allows West Virginia to accept the common law marriage as valid. Thus, as it stands this day, a person cannot simply go out and enter into a common law marriage in West Virginia.
This brings us back to the final question—what does this mean for the common law relationship recognized by another state? The answer is clear. A common law couple is subject to the limitations and requirements of the law of the state in which the marriage took place. This includes any requirements for a divorce petition.

What You Need to Know as a Couple

Couples in West Virginia who wish to establish a common law marriage, or have come recently from another state where they had common law marriage, or have just a general interest in finding out more should read this section carefully. Regarding common law marriage, as of March 15, 2016, the answer is no. Previously, the Court of Appeals in Ex Parte: The Estate of N.L.C., 131 W.Va. 639 (2014) overruled that portion of an earlier decision in which the West Virginia Supreme Court recognized common law marriage. In 2001, the West Virginia legislature had passed a law expressly abolishing common law marriage. This predated the 2001 West Virginia Supreme Court opinion that recognized common law marriage in limited circumstances. Since the West Virginia Court of Appeals has no ability to overrule a ruling by the state Supreme Court, it was not until the N.L.C. decision in 2014 that the common law marriage issue was resolved . Prior to the 2014 decision, the state Supreme Court had ruled that common law marriage was only allowed in limited circumstances including those entered into before 1901, where the husband was a POW, and more recently some other limited circumstances involving a common interest in real estate entered into after 2001. That is now a dead letter as of 2016. Regarding legal documentation, many people think that common law marriage is "proven" or "verified" by a certificate. However, there are no common law marriage certificates. There is no state registry. The only "proof" is that which a court of competent jurisdiction may recognize at a trial, which required a well-documented statement of how the requisite elements exist, including: If you think you may qualify for common law marriage for some other reason, contact an experienced West Virginia family law attorney to discuss your possibilities.

Finding Alternatives

Alternative legal relationships for couples in West Virginia include domestic partnerships and civil unions, although neither have been authorized in the state. Domestic partnerships give rights and responsibilities under state law to same-sex couples not available to cohabitating heterosexual couples. In a domestic partnership, two people must register with the Secretary of State’s Office and must file proof of cohabitation and some type of financial interdependence.
Civil unions give state-sanctioned rights, protections and responsibilities to same-sex couples and unmarried heterosexual couples, but do not grant the benefits of marriage such as the right to file federal tax returns as married couples and other federal tax benefits. Several other states in the nation have enacted domestic partnership or civil union laws, but West Virginia hasn’t.

Getting Legal Assistance

It is imperative to seek legal advice regarding your marital status. It is not uncommon for clients to come into my office thinking they are married, when in fact they are unfortunately not. Many premarital agreements contain inconsistent provisions with regard to property division should the relationship terminate. In those situations , the law clarifies the intent when provided with a consistent like set of facts. The facts leading to marriage apply to equitable distribution of property as well. Further, the law is ever evolving in the state of West Virginia. It is always best to be informed about what your legal rights and responsibilities are so you know what to expect.