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No Common Law Marriage in Michigan

By Wendy Alton

Common law marriage is the term for a “marriage” that exists solely by agreement and by cohabitation. More simply, a common-law marriage exists when two people agree to live together to be “married.” Common-law marriage is one of the fundamental rights that has existed in this country since the first settlers.

In 1838, Michigan passed a law that stated that “marriages may be solemnized by any justice of the peace in the county in which he is chosen, and they may be solemnized throughout the state by any minister of the gospel who has been ordained.” This was the first law enacted in Michigan in order to move away from the recognition of common-law marriage. The law was formalized in order to try to require either a justice of the peace or a minister to “solemnize” a marriage.

However, the law didn’t stick. In 1877, the United States Supreme Court heard the case of Meister v Moore. This was a case about the validity of a common-law marriage between William Mowry and his wife, Mary, the daughter of a Native-American named Pero. William Mowry had cohabitated with Mary for seven years, and then passed away. They had one daughter together, and if they were actually married under Michigan law, any property William owned would eventually pass to his daughter. If William wasn’t married under Michigan law, then any property he owned would pass to his mother.

The United States Supreme Court ruled that Michigan’s law of 1838 did not require that marriages be validated by a justice of a peace or a minister, but instead stated such solemnization (authorization) was discretionary: “marriages may be solemnized.” Thus, the common-law marriage of William and Mary was valid, and their daughter would eventually inherit any land that William owned.

It appears that Michigan did not address this issue again until January 1, 1957, when it changed its law to require that marriages must result only from a marriage license. After January 1, 1957, mere consent to be married or cohabitation would not be enough. A couple wanting to marry and have their marriage recognized by Michigan law would have to apply for and receive a marriage license. After the marriage license was issued, the marriage would then have to be authorized by a judge, a mayor, a court clerk or a minister.

Long story short, in Michigan, unless you have lived with someone with the agreement that you are married since December 31, 1956, Michigan will not acknowledge your common-law marriage. In order to be married, you must apply for a marriage license and then have your marriage solemnized or authorized by persons specified by Michigan law. This also means that in Michigan, in order to receive all the benefits that a spouse receives (health care, property, and inheritance); just living together is not enough.

If you are interested in learning more, please contact PSED divorce attorneys in Ann Arbor at 734-665-4441.

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