Common Law Marriage in Oregon: Does It Exist?
Oregon does not recognize common law marriage, but there are some exceptions to that rule. Oregon law provides that "a putative spouse" may have the same rights to spousal property division as a legal spouse if certain conditions are met under ORS 19.080(3). Oregon also provides recognition of "void" marriages under ORS 106.050 if a couple is married in another state where their marriage is void because they are related , but that marriage is not void in Oregon if based on the same facts. Otherwise, common law marriage is not recognized in Oregon. In short, in order for a couple to be married, the marriage ceremony must comply with TRADITIONAL requirement of 1) capacity or eligibility to marry, 2) mutual consent by the parties to enter marriage, and 3) the observance of statutory formalities. (And in Oregon, doesn’t need to be licensed or recorded per ORS 106.050 and ORS 106.060)
Legal Options Besides Common Law Marriage in Oregon
Accompanying the understanding that common law marriage is no longer available in Oregon, the State and Federal government have also put into place legal mechanisms to benefit couples who live together that are not married. Although these legal arrangements may provide some of the same benefits as common law marriage, they are not the same thing, and there are pros and cons to each. This is a brief overview of the alternatives to common law marriage in Oregon.
A domestic partnership is a formal domestic relationship which enables a couple to enjoy rights and benefits similar to marriage. It is a mutual commitment granted upon signatory parties, much like a marriage license. The only difference is in whether or not it’s called a domestic partnership versus a marriage. Domestic partnerships were created by Oregon House Bill 2007 on January 1, 2008. To be eligible to become domestic partners, the partners must be at least 18 years old, be from the same sex and not be closely related to one another.
Similar to a domestic partnership, a cohabitation agreement is a written contract placing rules or policies to define relative rights and obligations among adult persons who live together in a domestic partnership. Cohabitation agreements are independent contracts and can be enforced in court. Cohabitation agreements cannot create any defined financial benefits or rights with respect to death benefits. On the other hand, although domestic partnership generally grants these rights, they need to discussed and agreed upon under a cohabitation agreement. Without a marriage license, the cohabitation agreement serves more as a prenuptial type of agreement which should be reviewed by counsel for the best protection.
States That Have a History with Common Law Marriage
In the early days of colonization, common law marriage was relatively prevalent. Indeed, from 1818 to 1830, every State in the United States legally recognized common law marriage to some degree. Over the years, however, legislation began to shift towards a more formalized system of marriage by requiring couples to obtain a marriage license and to undergo a ceremony for their marriage to be considered valid. From the 1860s to the 1920s, many U.S. States adopted laws that expressly nullified the concept of common law marriage. These States fall under one of two categories: (a) those States that do not recognize common law marriage at any point in history, and (b) those States that recognized common law marriage, but only for a short period of time (the sun set provisions). Modernly, 43 States and the District of Columbia have a definitive law on the books stating that common law marriage does not exist (even though some may provide for limited grandfathered provisions, like the State of New Jersey). The remaining six States – Alabama, Colorado, Iowa, Kansas, Montana and Rhode Island – currently allow individuals and couples to enter into a common law marriage under certain circumstances.
How Oregon Handles Out-of-State Common Law Marriages
Oregon will recognize common law marriages that were legally entered into in other states, and it has done so for several decades.
In the past, there was no consistent ruling on whether Oregon would recognize a common law marriage. However, in 1969, the Oregon legislature passed a statute stating that married persons may have a common law marriage. The Oregon Supreme Court has consistently recognized marriages that were entered into by parties that otherwise meet the requirements of a declaratory judgment . In an Oregon case, In re Swig, decided in the context of a Name Change Order, the Court ruled that Oregon must apply the "Full Faith and Credit Clause". Oregon has a "long history of resentful recognition of marital relationships even when entered into in other states", and according to the Supreme Court, this recognition of common law marriages is a repudiation of such a policy. Even though Oregon does not recognize common law marriages, the Full Faith and Credit Clause requires all states to recognize the validity of such marriages if the marriage occurred lawfully in another state.
What It Means for Couples Without a Common Law Marriage
Without the legal framework of common law marriage in Oregon, couples that divorce or separate will have to navigate property rights issues in a different way than legally-wedded couples do. When child custody or child support is in question, unmarried couples must take a different approach than what unwinds a marriage. This is an important consideration when analyzing whether to cohabitate with a partner.
Oregon is a state where property is not divided at the time of divorce, but rather each party is entitled to their own property as of the date the assets became non-marital property. This could be personal property the parties own – if the property has been bought by one of the parties solely in his or her name, as in real property or vehicles – or it could be financial property such as bank accounts, stocks, and assets in a retirement account. The characterization of the property as belonging to one party or another is determined by when the assets were acquired, and are unrelated to the parties’ general intent as to the property.
The character of property can differ greatly. An asset could be marital if it was acquired during a marriage, but then become non-marital if one spouse quit-claims their interest to the other spouse. Or the property could be non-marital when it is acquired during marriage, but marital if the non-titled spouse later acquires an interest in the title-holding spouse’s property.
In Oregon, without the existence of a marriage, anything you receive during the course of your relationship is likely to be non-marital. This means that when partners break up or separate, there is no "half" of the assets for the other party.
There are two issues that can be a problem for couples who live together as unmarried partners: (1) the absence of a constructive trust, and (2) the absence of an equitable division of property. A constructive trust is different than a legal title. Without the person on title giving their written consent to another person, there cannot be a constructive trust created.
The absence of constructive trusts creates a problem because there is no equitable division of property between unmarried cohabitants. Relationships that do not end in divorce face a problem, because state courts are not there to divide property. The parties often terminate these relationships absent a legal or paper-trail, and because of this, the law is ill-equipped to determine the value of the property, who contributed to the property, and how it should be divided between the parties.
The right of cohabitants to have their property divided is very limited. Without a written agreement, cohabitants are dependent on equitable remedies to divide their property.
Where to Seek Legal Consultation Regarding Your Rights in Oregon
Despite the small percentage of married residents in Oregon, the state has many laws that govern marital and relationship rights. Issues such as asset division, debt allocation and more come into play when a relationship or marriage ends , and these laws are complex and daunting even to seasoned lawyers. It is wise to learn more about common law marriage in Oregon — and the rights of unmarried couples in general — from a knowledgeable Oregon attorney who can guide you through some of the gray areas of the laws and how they apply to your specific case. You may have questions about: Any of the above concerns could lead you to seek the legal assistance of a Portland divorce attorney. When you understand your options and how the law works in your favor, you can increase your chances of achieving the results you desire.
