The Court of Appeals in Gill v. Nostrand, decided on April 25, 2019, defined and analyzed the legal elements for common law marriage pertaining to same sex couples.

Here Gill moved for legal separation against Nostrand requesting alimony and division of property shortly after Nostrand legally married another partner.

The trial court in short determined that the relationship did not meet the requisite requirements of common law marriage, the Court of Appeals with further detailed analysis affirmed.

In its ruling, the Court held that a party in a same-sex relationship must be given the opportunity to prove a common law marriage even when at a time same-sex marriage was not legal in the District.

The elements for common law marriage for same sex couple are the same as non-same sex couples in that such requires:

  • Cohabitation following an express mutual agreement, which
  • Must be in words of the present tense,
  • To be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.

The oral agreement or an exchange must be specific and unambiguously imply that an agreement was being entered into to become man and wife or domestic partners.  That is, to be married at an unspecified future time would be insufficient to establish the existence of a common law marriage or partnership.

A claim of common-law marriage generally is proved by a preponderance of the evidence unless as here it is a claim against subsequent ceremonial marriage, which then requires proof by clear and convincing evidence.

The trial court in holding lack of sufficient evidence for a common law marriage held that:

  1. Parties did not remember the exact date of common law marriage. Although there was an . exchange of rings, the exchange was to solidify having a monogamous relationship but not so much as to enter into a common law marriage.
  2. Parties did not notify or celebrated the occasion with their friends or family, did not go to honeymoon, or had any official or nonofficial party or ceremony or celebration to cement the partnership.
  3. The rings exchanged were never inscribed and the defendant’s testimony was clear that he associated marriage with their rings being inscribed and in a future date, if any.
  4. A significant factor, parties maintained largely separate financing. No joint back accounts, the plaintiff was not on the deed of the property, and although there was some evidence of designation of beneficiary for health, and trust and estate issues, this was not dispositive.
  5. In Contrast, the defendant and his new partner had opened joint accounts shortly after marriage, filed joint tax returns, and had wills, health care directives, and powers of attorney naming each other as beneficiaries or agents.
  6. More abstractly, the plaintiff had not objected to the defendant getting married to his new partner and only objected and filed a separation action after consulting a lawyer and being advised that he may have a claim against the defendant under the theory that the parties were in a common law marriage.

Moreover, the court used a caselaw precedent of a same sex couple being held as common law spouses when parties there had exchanged a diamond ring engraved with the date of their union, the two men had celebrated that date as their wedding anniversary for 16 years; they had joint banking and investment accounts and a joint mortgage, made mutual wills and health care powers of attorney, and referred to each other as spouses.

Here, ultimately the Court of Appeals held that there was not a “totality of reciprocal relations” and thus not a common law marriage.

Refer to our Washington DC Divorce Lawyer page for more information on this subject and other areas of Divorce in the District.

Categories: Family Law.