A common law marriage requires that the parties (1) have a mutual agreement to be married, (2) have the capacity to be married, and (3) cohabit or mutually and openly assume marital duties. There is no minimum time requirement for parties to cohabitate in order to form a common law marriage. Once established, a common law marriage can only be dissolved through divorce, just like a ceremonial marriage. Parties may not establish a common law divorce in Oklahoma.
Child Support Services does not determine whether the elements of “cohabitation,” “capacity,” and “intent” are present. Therefore, CSS does not consider a custodial person’s statement of the existence of a common law marriage as establishing a presumption of paternity in the common-law husband under Section 7700-204 of Title 10 of the Oklahoma Statutes. Instead, child support staff work this fact pattern as a paternity case and file a Notice of Paternity and Support Obligation court action (OAC 340:25-5-176, Instructions to Staff). However, if CSS Attorneys have to defend in a court action an allegation of the existence of a common law marriage, questions to ask the parents in order to determine whether the requirements of a common law marriage existed are:
- Did you file joint income tax returns?
- Did you borrow money or sign a lease as husband and wife?
- Did you sign anything in which you stated you were the spouse of the other person?
- Did you introduce each other as husband and wife? Did you consider yourselves to be husband and wife?
OAC 340:25-5-176 Instructions To Staff
- When a non-public assistance application, or an Adult and Family Services Temporary Assistance for Needy Families (TANF) or non-TANF SoonerCare (Medicaid) referral indicates the parents were common-law married, CSS staff does not consider this as establishing a presumption of paternity in the common-law husband per 10 O.S. § 7700-204. Instead, CSS staff works this fact pattern as a paternity case and files a Notice of Paternity and Support Obligation court action.