Once Common Law Marriage Has Occurred, There Is No Common Law Divorce in Oklahoma

Video Transcribed:  I am a Tulsa dad’s rights attorney. Today, I’d like to talk to you guys about common law marriage. What is common law marriage? And when does it come into play? Common-law marriage is a marriage that occurs without the actual official ceremony where basically, you can be deemed to be married based on having held yourselves out to the public as being married and living together with the present intent of being married.

Some examples of how that might come into play. If you cohabitate with somebody and you file taxes jointly, you have a joint bank account as husband and wife, you own property together as husband and wife, you introduce yourselves to your friends as husband and wife, any of those things could be evidence of common-law marriage.

Once common law marriage has occurred, there is no common law divorce in Oklahoma. So if you’re common-law married, you still have to get divorced the way everybody else gets divorced, which is to say, you have to actually file for it. Common-law marriage can be an interesting creature. Sometimes it can work to your advantage in terms of as a man, in terms of if you have a child by your live-in girlfriend.

Because if it can be deemed to be common-law husband and wife, you have rights by implication. Whereas if you are not, then you don’t have any rights to your child until you establish them through a judicial determination of parentage. And the difference basically is if you have a child, if a woman has a child with a man while married, the child is presumed the child of the man she’s married to absent specific facts to the contrary.

So you get the benefit of that presumption, and you immediately have vested rights if you’re married. And that includes common law marriage. If you are not married, then you have no rights until you establish them through judicial paternity proceedings. So there’s that advantage.

The other side of common law marriage though, is that it also can affect certain other things. For example, if you pass on and you are trying to leave all of your worldly goods to your children, but you live with somebody and held yourselves out as being a married couple, well then, your common-law spouse would get a spouse’s share of your estate. And under Oklahoma law, you cannot fully disinherit a spouse.

So if your will, if you have a will and it’s inconsistent with that, your will could be partially ignored in order for your spouse, your surviving spouse to get their spousal share.

It also creates some other interesting wrinkles. So for example, a common-law spouse would be able to take advantage of the probate homestead right under the probate code, just as if you had married them in a church or married them in a courtroom.

So there are some interesting wrinkles with respect to common law marriage. But it does present some advantages to you. If you can establish common law marriage, it does present you with some advantages in terms of child custody rights.

Now, how do you establish a common law marriage? Well, typically, proving common law marriage is something you would have to take to court. It’s usually in the form of a divorce or some other court proceeding that basically the court will find that you are common law married.

And that’s basically going to be an issue that would be determined at a trial. It is an interesting little bit of law in Oklahoma. It can be worked to a man’s advantage in some situations. In other situations, it could potentially cause some hang-ups for your heirs if you are deemed to be common law married when you pass on. So that’s the long and short of common law marriage.