In your memorandum to us dated February 21, 1980, you sought clarification of a previous
memorandum from the Office of General Counsel concerning Michigan law on the presumption
of validity of a common-law second marriage. The previous memorandum (RA V (Crawley)
to GLPSC, dated May 24, 1977) cited the decision of the Michigan Court of Appeals
in the case In Re Estate of Leonard, 45 Mich. App. 679, 207 N.W. 2d 166 (1973) for the proposition that there is a presumption
of validity for a common-law second marriage, provided that "both parties must have
the legal capacity to enter into their common-law marriage." In particular, you are
now inquiring whether "legal capacity" in this context means that it must be shown
that any previous marriages have been terminal. You suggest that if this is the interpretation,
then there is no need for a presumption, since the validity of the second, common-law
marriage would be "unequivocally valid."
For the reasons which we will discuss in Part I of this memorandum, we have concluded
in clarification of the May 24, 1977 memorandum as follows:
It does not appear necessary under Michigan law to demonstrate affirmatively that
a prior marriage has been terminated in order to raise a presumption of validity of
a subsequent, common-law marriage. However, such a presumption can be rebutted and
defeated by evidence showing that a prior marriage has not been terminated and, therefore,
the individual involved did not have the legal capacity to enter into the subsequent,
To the extent that the Leonard decision reaches a different conclusion which would require such an affirmative demonstration
to even raise the presumption, that decision appears to be a shifting of ground in
applying the principles approved. by the Michigan Supreme Court.
The May 24, 1977 memorandum accurately summarized the Michigan decisions and correctly
responded to your inquiry at that time whether the presumption applied to common-law
as we11 as ceremonial marriages.
As to the first and second points, discussion among attorneys in our office indicates
that these matters are open to different interpretations. The next decision of the
Michigan Supreme Court dealing with the presumption will, we hope, resolve these matters.
Since it is our responsibility to assist you in applying Michigan law as we believe
the courts of Michigan would do, we have concluded that the interpretations offered
in points one and two are those which the Michigan Supreme Court would most likely
adopt today if the issues were fully presented to it.
In order that we may keep you currently informed on the state of the law on this issue
in Michigan, we suggest that you refer to us all Michigan cases involving evidence
of a prior marriage and a subsequent, common-law marriage and the question of legal
capacity to enter into the latter.
In Part II of this memorandum, we have evaluated the subsequent, common-law marriage
of James and Agnes D~ in light of our legal conclusions from Part I.
Part I: The Legal Framework
A. The Law of the Presumptions Prior to Leonard
First, we want to make clear our understanding of Michigan law prior to the Leonard decision. The Michigan Supreme Court in Doertch v. Folwe11 Engineering Co. et al., 252 Mich. 76, 233 N.W. 211 (1930) summarized we11 the underlying principles:
The law presumes the validity of a ceremonial marriage. It is said this presumption
is one of the strongest known to the law. It is founded, not only on a presumption
of innocence of the crime of bigamy on the part of the contracting parties and on
the regularity of the acts of licensing and officiating officers, but has a basis
in the public policy to foster respectability and to protect offspring from the taint
of illegitimacy. In civil actions, the law also presumes that a valid marriage, once
shown to exist, continues in force both as to life of the parties, within the statutory
seven-year period, and the want of their divorce ....
These presumptions, like most others, are not conclusive. They may be rebutted by
a showing of facts or circumstances which either may establish the validity or invalidity
of the marriage conclusively or raise an issue to be determined upon preponderance
of the evidence. Where, however, the validity of a subsequent as against a former
marriage rests wholly on presumptions of law, the presumption favoring legality of
the later marriage, if it were ceremonial, will prevail over the one which favors
a continuance in force of the prior marriage. 233 N.W. at 212.
See also Weinert v. Tallman, 346 Mich. 388, 78 N.W. 2d 141, 143 (1956), confirming the principle that the unrebutted
presumption of validity of a subsequent marriage will prevail over the presumption
of continuance of a prior marriage.
Although the Doertch court speaks of the presumption of validity for the second marriage prevailing over
the presumption of continuation of a prior marriage "if (the later marriage) were
ceremonial," Michigan has in fact treated a common-law second marriage with much the
same deference as a ceremonial second marriage. In May v. Meade, 236 Mich. 109, 210 N.W. 305, 307 (1926), the Supreme Court had cited with approval
a Mississippi decision indulging the same presumption of validity for the second marriage
in the case of a common-law relationship as the law indulges in favor of a ceremonial
second marriage. This position was relied upon subsequently in Watts v. General Motors Corporation, 308 Mich. 499, 14 N.W. 2d 68, 69 (1944). In Watts Women had successively entered into apparent common-law marriages with one man who
died in 1942: Mabel R. in 1917 and Winifred in 1933. Winifred asserted the presumption
of validity of the subsequent, common-law marriage and its dominance over a presumption
of the continuation of any prior marriage. The Watts court on these facts recognized that the presumption was raised, but held that the
presumption was rebutted by adequate evidence that the prior wife continued to live
and was still legally married to the decedent in 1942. 14 N.W. 2d at 68-70.
With regard to rebuttal of the presumption in favor of second marriage, the courts
in May and Watts both quoted with approval the following language from the syllabus summary the decision
in Killackey v. Killackey, 156 Mich. 127, 120 N.W. 680 (1909):
In the absence of any evidence as to the date of prior marriage, or as to relation
of the parties since such marriage, or as to the continuance or termination of such
relations, the presumption of legality which attaches to a second marriage is held,
not to have been impeached. 120 N.W. at 680 (emphasis added).
More recently, in In Re Estate of Adams, 362 Mich. 624, 107 N.W. 2d 764 (1961), the Michigan Supreme court reaffirmed the
principles stated in Doertuh:
As in the Doertch case, James ~ whereabouts were wholly unaccounted for between the time of his departure
from . .. (his prior wife) in 1927 and his marriage to Corinne ~ in 1935 ... In the
absence of any clear and positive evidence establishing his marital status at the
time of his marriage to Corinne ~ in 1935, this case likewise rested upon the balancing
of the presumptions of law referred to in the Doertch case, and we must, therefore, hold that the presumption in favor of the validity
of the second ceremonial marriage was dominant. 107 N.W. 2d at 767 (emphasis added).
The Adams court was asked to consider the decisions in Watts and in Braymer v. Overton
Machine Co., 324 Mich. 648, 37 N.W. 2d 659 (1949), as well, both of which had involved subsequent
Common-law, not ceremonial, marriages. Having reviewed these decisions the court asserted:
In the latter two cases, ... while recognizing the efficacy of the presumption here
involved the Court fours] evidence sufficient to impugn the validity of the second
marriage. In each case the result reached by the Court may properly be questioned
but the important point here is that the Court in those cases did recognize the principle
of law we here apply. 107 N.W. 2d at 767 (emphasis added).
Explicitly, the Adams court confirmed the use of the presumption in favor of validity of the subsequent
marriage in the Watts and Braymer circumstances involving a common-law second marriage.
In Beaudin v. Suarez, 365 Mich. 534, 113 N.W. 2d 818, 819 (1962), the Michigan Supreme court held that
a subsequent, ceremonial marriage was invalid where there was "a clear showing" that
an earlier, common-law marriage had not been dissolved. The court's language does
not illuminate the issue we are concerned with, however: "The presumption of validity
of a second, ceremonial marriage (citing Adams) does not apply where, as here, there is a clear showing that the earlier marriage
has not been dissolved." 113 N.W. 2d at 819. This could mean either that the presumption
is rebutted and does not hold, or in the alternative that it was never raised. Significantly,
however, the underlying authority is Adams.
In Moots v. Secretary, United States Department of
Health, Education and Welfare, 349 F. 2d 518 (4th Cir. 1965), social security benefits were at issue in federal
court. The case involved a prior, ceremonial marriage and a subsequent, common-law
marriage. The Moots court noted that the proponent of the later common-law marriage asserted "the rule
recognized by the Michigan courts that the presumption favoring the validity of a
subsequent marriage overrides the presumption favoring the continuance of a prior
marriage (citing Adams and Doertch)," 349 F. 2d at 520. The Moots court distinguished the result reached
First, the second marriage in Adams was a ceremonial marriage rather than the common-law marriage we have in this case,
and ... the ;uterus opinion itself seems to suggest that the presumption of the validity
of a second ceremonial marriage is entitled to greater weight than when the later
marriage is a common-law one. Secondly, the evidence in this case that the (prior)
marriage . .. was never dissolved by divorce is considerably more extensive than the
evidence in the Adams opinion pertaining to the termination of the first marriage. Thirdly, the evidence
in this case indicates that (there was significant knowledge of the whereabouts and
activities of the absent spouse indicating continued contact between the parties to
the prior marriage). 349 F. 2d at 520-521.
Significantly, the Moots court accepted the concept that the presumption could arise in favor of a subsequent,
common-law marriage in a case such as the one before it, although characterizing such
a presumption as being of less weight than one involving a subsequent, ceremonial
marriage. Moots does not specifically state, however, whether the presumption was raised, but rebutted,
or whether it was never raised in that case. The court merely affirmed the legal result
reached by the social security hearing examiner that "the (prior) ceremonial marriage
... had never been terminated ... (and) was a legal impediment which prevented the
existence of a valid (subsequent) marriage — ..." 349 F. 2d at 520.
Finally, in John Hancock Mutual Life Insurance Company
v. Willis, 438 F. 2d 1207 (6th Cir. 1971), the federal court relied upon Adams as authority for its statement of the Michigan law:
The general rule is that any ceremonial marriage is presumed valid, but that its validity
may be rebutted by evidence indicating that it was not lawfully entered into: thus
the most recent ceremonial marriage is presumed to be valid over any preexisting marriage.
438 F. 2d at 1208.
The court concluded that evidence she a genuine issue of fact as to whether the prior
marriage had ended, including an affidavit of the prior spouse denying knowledge of
divorce or other termination of her marriage and an affidavit indicating that the
errant spouse admitted three years after his subsequent marriage that he had never
been divorced from his prior spouse.
From all of the foregoing cases we may summarize several well-established principles
in the Michigan law relating to these presumptions:
The law presumes the validity or legality of a marriage and this is one of the strongest
presumptions in the law.
The law also presumes that a valid or legal marriage continues in force while the
two parties to it live and have not been formally divorced.
Both of these presumptions may be rebutted by adequate evidence to persuade the tribunal
that they are without foundation in fact.
Both of these presumptions. apply to a common-law marriage as well as to a ceremonial
marriage, l/although they may have greater weight if they concern a ceremonial marriage.
Where the validity of the subsequent marriage as against the prior marriage must be
decided based only on the two presumptions and in the absence of adequate evidence
to rebut either presumption, the presumption of legality of the subsequent marriage
will prevail over the presumption of continuation of the prior marriage.
B. The Leonard Decision and Elements Necessary to Establish Common-Law Marriage
In 1973 the Court of Appeals in Leonard summarized in similar fashion and approved at least the first four of the foregoing
five principles. However, the Leonard court refused to permit the presumption of validity of the subsequent, common-law
marriage. The court decided that the party seeking its benefit had not even succeeded
in raising the presumption, because he had not affirmatively demonstrated that the
undisputed prior marriages of both spouses had been terminated. The Leonard decision recreates such an affirmative demonstration both as a matter of establishing
a prima facie case for the very existence of a common-law marriage and as a matter
of raising the presumption of its validity as against any prior marriage. The first
matter involves application of the Michigan law on common-law marriage. The second
involves application of the Michigan law on presumption of validity of a subsequent
marriage. In our judgment, the Leonard court has shifted ground in applying both of these aspects of Michigan law. 2/
We have collected the following statements from other court decisions summarizing
the elements necessary to be shown by a party who would establish his common-law marriage
before a Michigan court.
This court has not deviated from the implications of Hutchins
v. Kimme11, 31 Mich. 126, 18 Am. Rep. 164, where Mr. J ~ said: "Whatever the form of ceremony,
or even if all ceremony was dispersed with, if the parties agreed presently to take
each other for husband and wife, and from that time lived together professedly in
that relation, proof of these facts would be sufficient to constitute proof of a marriage
binding upon the parties ..." Westfall
v. J. P. Burroughs & Son, 280 Mich. 638, 274 N.W. 358, 359 (1937) (emphasis added).
(Citing approvingly Proctor v. Bigelow, 38 Mich. 282, 283:) "The marriage was proved by her son's testimony, showing that
she and his father lived together and brought up a large family, treated each other
on all occasions as husband and wife, were so reputed in the family and by others,
addressed each other as such, and jointly signed papers in that relation."
In (Michigan) a marriage is not proven by evidence only that the parties, inter $e,
agreed to take each other for husband and wife. To establish a nonceremonial marriage,
there must be proof, not only of the agreement, but of the setting up of the relation
of husband and wife by cohabitation. The parties must act in conformity with such
an agreement and live together and cohabit as husband and wife — live" together in
that relation. (citing Hutchins) People v. Spencer, 199 Mich. 395, 165 N.W. 921, 923 (1917) (emphasis added).
As has been said in numerous decisions of this court, the test of a common-law marriage
is: Did they presently agree to take each other for husband and wife, and thereafter
live together in that relation? Griffin v. Griffin, 225 Mich. 253, 196 N.W. 384, 385 (1923) (emphasis added); see also, Hannigan
v. Hannigan, 43 N.W. 2d 895, 896 (Mich. 1950); In Re Wall's
Estate, 99 N.W. 2d 599, 600 (Mich. 1959).
... (T)o establish a common-law marriage, it is not alone sufficient that the parties
cohabited and were known as husband and wife, but it is essential that it also be
shown that there wins a present agreement between the parties to take each other as
husband and wife. (citing Hutchins, Spencer and Griffin) In Re Meredith's Estate, 279 Mich. 298, 272 N.W. 683, 685 (1937) (emphasis added).
We have consistently held that where parties who were competent to enter into the
marriage contract presently agreed to take each other as husband and wife, and subsequently
cohabited as such, the marriage was valid. Westfall, supra, 274 N.W. at 359 (emphasis added).
In (Michigan a common-law) marriage is recognized if it is shown that there was a
present agreement between the parties to take each other as husband and wife, followed
by cohabitation. (citing Meredith's
Estate) Gratings v. Kettle, 306 Mich. 308, 10 N.W. 2d 895, 896 (1943) (emphasis added).
A valid common-law marriage recreates the present agreement to live together as husband
and wife made by persons who are free to marry, and their subsequent open cohabitation
together as husband and wife. (citing Spencer), In Re Estate
of Leonard, supra, 207 N.W. 2d at 168.
In Cox v. Weinber9er, 404 F. Supp. 1384 (E.D. Mich. 1975), a case involving social security benefits,
the federal court was called upon to apply Michigan law to determine whether a common-law
marriage existed between the claimant, Eva, and James ~. Constituting the evidence
tending "to establish a common-law marriage," 404 F. Supp. at 1386, the following
matters were enumerated by the court: a signed statement by James that he had a common-law
marriage with Eva; a deed conveying property from James to Eva, "his wife;" a bank
account held in the name of James E. ~ or Eva ~; an insurance certificate listing
as beneficiary "Eva ~ —Wife;" a signed stature by James that he believed he was legally
married to Eva and that he "felt just as married as with my previous wives" and that
his previous marriages were ceremonial; a signed statement by Eva that she considered
their common-law marriage binding; and James' complaint for divorce alleging that
he and Eva had entered into a common-law marriage.
The Cox court concluded:
Under the Stafford for common-law marriage set forth in Meredith, these documents and representations by James and Eva ~ are clearly sufficient to
establish an agreement to take each other .as husband and wife. Were this court to
apply the Michigan law to these facts as an original totter, it would be compelled
to find that James and Eva had a common-law marriage. 404 F. Supp. at 1387.
The federal court reached this conclusion even though the evidence of James which
was considered included specific references to his previous ceremonial marriages without
any affirmative showing that these had been discontinued and he had the legal capacity
to marry Eva.
Reviewing these cases together, we find that only the Leonard decision unequivocally requires that, in order to establish a common-law marriage
as an initial burden of proof, the proponent must show that both parties were free
to marry, as well as their present agreement to live together as husband and wife
and their subsequent open cohabitation as husband and wife. The authority which Leonard cites for this proposition is Spencer, supra. But Spencer does not include the element of being free to marry in its statement of the Michigan
law: this third element is found only in the quotation of the entire findings of fact
entered by a lower tribunal. See, 165 N.W. at 922.
The second most prominent source of authority for the Leonard proposition might be Westfall, supra, which states that Michigan courts have consistently held a common-law marriage
to be valid where the three elements are found (the parties presently agreed to take
each other as husband and wife; subsequently they cohabited as such; and they had
been competent to enter into the marriage). Yet this statement of principle is found
immediately following the quotation from Hutchins, supra, which the Westfall court states that Michigan has never deviated from: that quotation does not include
the element of being free to marry as required in order to be "sufficient to constitute
proof of a marriage binding upon the parties." We believe that these two apparently
inconsistent statements Westfall of what is necessary for the common-law marriage can be reconciled by understanding
the difference between establishing a marriage as an initial burden of proof and impeaching
the validity of such a marriage as a matter of rebuttal. Competency to enter into
the marriage can defeat the validity of the marriage, but is not necessary to establish
the existence of a marriage as an initial matter.
The Leonard decision itself states:
Evidence offered to prove a common-law marriage must be clear and convincing. The
party who asserts the marriage bears this burden .... Once the proponent of such marriage
makes out his prima facie case, the burden is upon the party attacking its validity
to show that the marriage is invalid. 207 N.W. 2d at 168.
Read together with the weight of Michigan Supreme Court authority recited above concerning
the common-law marriage, we conclude that the proponent need not affirmatively prove
legal capacity to enter into such a marriage in order to establish the existence of
the marriage as an initial burden of proof. However, if evidence is then introduced
which demonstrates in fact the lack of legal capacity (e.g., continuing prior marriage,
or a state statute prohibiting common-law marriage), then such marriage is invalid
C. The Leonard Decision and the Presumption
We believe that the Leonard decision has also shifted ground in applying Michigan law concerning the presumption
of validity of a subsequent marriage, which is held to take precedence over the presumption
of the continuation of a prior marriage.
This shift results in the anomalous position which you questioned in your memorandum
to us: if, in order to raise the presumption, one must establish that any prior marriage
is terminated, then, at least as regards the relation between the subsequent and prior
marriages inmost cases, it is no longer a presumption, but "unequivocal" proof.
In our view the Leonard court bas ignored the Killackey language quoted above at page 3, which is a1so underlined as part of the principle
number five above at page 6. The principle states that where there is no adequate
evidence to indicate that the prior marriage either continues or was not terminated
until after the subsequent marriage it is presumed that it was terminated before the
subsequent marriage and the latter is valid. Adams specifically confirms this principle, both as to ceremonial and common-law subsequent
marriages. Leonard, in contrast, states that where there is no such adequate evidence, the court may
not presume a legal basis for the subsequent marriage.
This is a shift of ground on the part of the Leonard court which we believe is not justified by the case law it relied upon. In addition
to the decisions in Spencer, Westfall, Watts, Doertch, May, Killackey and Weinert already referred to in this memorandum, the Leonard court relied upon the result in three additional cases: In Re Estate
of Osborn, 273 Mich. 589, 263 N.W. 880 (1935); Crockett
v. Consolidated Paper CO., 281 Mich. 571, 275 N.W. 253 (1937); and Braymer v. Overton Machine CO., supra, page 4.
In each of these three cases, the Michigan Supreme Court held that a subsequent common-law
marriage was invalid. However, in each of the three cases there was actual evidence
that the prior marria9e continued, either because both spouses remained alive, 263
N.W. at 881, 275 N.W. at 253, or because "testimony show(ed) that this (prior) marriage
had not been terminated." 37 N.W. 2d at 661. By contrast, there was no evidence in
Leonard that the prior marriages of the spouses continued, just as there was no "competent"
evidence to show that either of the prior marriages was terminated.
We think that the three cases of Osborn, Crockett and Brayrmer support the proposition that the presumption of validity of a subsequent, common-law
marriage can be rebutted by evidence showing that the prior marriage continued. They
do not clearly stand for the different proposition asserted by the Leonard court that this presumption cannot even be raised unless there is evidence that the
prior marriage was in fact terminated. 3_/
In Leonard the court either ignored or was never given the benefit of the Adams decision, which has become one of the most frequently cited Supreme Court opinions
concerning operation of the presumption of validity. While it is true that the presumption
was applied in Adams to a subsequent, ceremonial marriage, it is also indubitably true that Adams confirmed the principle of the application of the same presumption in Watts and Braymer, which involved subsequent, common-law marriage. Adams differed from Watts and Braymar, where the presumption was held to have been rebutted, in that there was in Adams an "absence of any clear and positive evidence" establishing whether the prior marriage
continued. In this respect Leonard is basically the same factual situation as Adams. On such facts, Adams, Watts, Braymer, Doertch, and Killackey all point to the conclusion that the presumption of validity of the subsequent marriage
(even a common-law marriage) would be raised and upheld as unrebutted.
Our discussion of the more recent cases of Beaudin, Moots and Willis, above at pages 4-6, suggests that these may we11 be read to support this rationale
that the presumption can be raised, but then rebutted by clear evidence that a prior
marriage was never terminated. It is much more difficult to read all of these cases
which refer approvingly to the presumption rationale as being consistent with Leonard.
It may be that the Court of Appeals in Leonard did not more carefully consider how its refusal to raise the presumption of validity
of the subsequent, common-law marriage would fit with Watts and Adams because there was a more substantial reason for refusing to recognize the presumption
in the first place. In Leonard the parties who were alleged to have established a subsequent common-law marriage
were inconsistent in that they held out to a wide variety of persons and agencies
in the community that they were not in fact married. 207 N.W. 2d at 170.
For the foregoing reasons, we conclude that the Michigan Supreme Court would apply
Michigan law concerning the relationships of the presumptions involving prior and
subsequent marriages differently than did the Court of Appeals in Leonard. The Supreme Court would more likely adhere to the interpretation which it articulated
in Adams and Watts, above at pages 3 and 4. We believe the five numbered principles at page 6 above
accurately summarize these two Supreme Court decisions and the case law on which they
are based. To the extent that the Leonard decision may be interpreted to conflict with these principles we believe that it
should not be relied upon at this time.
The May 24, 1977 memorandum from our office was concerned with your inquiry whether
the presumption of validity of the subsequent marriage also applied to common-law
marriage. The memorandum is correct in responding that the presumption does so apply
and in summarizing the holdings of the Michigan decisions, including the Leonard case. As noted at note 2, page 3 of the May 24 memorandum and as we have discussed
more fully here in response to your inquiry, the Watts and Leonard courts reached their results with each using a different rationale.
We must emphasize, however, that the Social Security Administration plays a different
role than does a Michigan court. The Administration is called upon to investigate,
as much as is necessary and feasible, the actual facts surrounding family relationships.
A court may enter judgment based only on the facts which are brought before it by
the parties involved in a suit. Therefore, it is to be expected that the Administration
would not use the presumption of validity of a subsequent, common-law marriage until
after a reasonable investigative effort had been made to determine the facts without
benefit of presumption.
As suggested above at page 2, we ask that you refer cases of the type there described
to us for an opinion so that we may keep you abreast of Michigan legal developments
affecting these cases.
Part II: Application of the Law to the Dolsen Case
The elements required to establish a common-law marriage in Michigan, it will be recalled,
are: a) the agreement at the time of "marriage" to take each other as husband and
wife; b) the subsequent living together professedly in the relation of husband and
wife. As an initial burden of proof, the D~ 's have established both of these elements
from their statements made to the Social Security Administration (SSA); the statements
of two persons having knowledge of the relationship to the Veterans' Administration;
a 1955 land contract and checking account instrument showing "Agnes C. D~, his wife"
and "James or Agnes C. D~" respectively; and a 1956 tax payment showing "Mr and Mrs.
D~." SSA apparently has no serious question about these elements of the common-law
Agnes D~ was married to Lorenzo S~ in 1934 (See Form SSA-2 F6 dated 5/15/79) and apparently
separate from him in about 1936 or 1937 in Lansing, Michigan. She has produced no
definitive evidence that this prior marriage was ever terminated and, therefore, it
raises the question whether she had the legal capacity to marry James D~ in 1947.
Since the question of legal capacity involves a prior marriage, it may be addressed
either from the perspective of the law involving presumption of validity of a subsequent
marriage or from that of the law involving validity of a common-law marriage itself
(See, our introductory discussion of the Leonard decision at the top of page 7 above). In order to answer the question, we must determine
whether the evidence concerning the continuation of the prior marriage is sufficient
to rebut either the presumption or the prima facie case establishing this common-law
marriage (See, quotation from Leonard at the bottom of page 10 above). Concerning rebuttal of the presumption, the Doertch court stated that:
(These presumptions) may be rebutted by a showing of facts or circumstances which
either may establish the validity or invalidity of the marriage conclusively or raise
an issue to be determined upon preponderance of the evidence. 233 N.W. at 212.
What is the evidence in the D~ case concerning continuation of the prior marriage?
Agnes D~ stated that she was informed her prior spouse Lorenzo did not die until 1958,
but there is no confirmation of his date of death. It appears that there was no contact
between her and Lorenzo and that nothing whatever was known of his whereabouts after
they separated. The three items of evidence concerning whether there was a divorce
are not conclusive. First, SSA actually checked the records of the state and of Ingham
County (Lansing) and found that there was no record of a divorce between Lorenzo and
Agnes C. S~. Second, Agnes replied on Form SSA-2 F6 dated 5/15/79, Application for
Wife's Benefits, to the questions "How marriage ended" and "When" with the responses
"his death" and "1958," although it is possible that she did not realize the significance
of completing the blanks in this fashion, given her other evidence. Third, Agnes stated
that a person now deceased had informed her before her marriage to Dolsen that her prior marriage to S~ had been terminated by divorce, but that she did not
know where or when the divorce took place.
The interim period between her separation from S~ and her marriage to D~ was about
ten years and her subsequent marriage has continued for about thirty-two years. Three
children have been born of the D~ marriage.
How does this evidence fit into the law of the presumption of validity of the subsequent
marriage? We believe the most significant features of the evidence are the absence
of positive evidence concerning the whereabouts and activity of Lorenzo, the prior
spouse, and the absence of positive evidence concerning whether the prior marriage
was terminated. By comparison, in Adams there was also a lack of knowledge concerning
the whereabouts and activity of the prior spouse James, who was also unavailable to
the court, and the presumption in favor of the subsequent, ceremonial marriage there
was upheld. In Moots and Beaudin, however, there was considerable knowledge of the whereabouts and activities of the
former spouses, Mary and Clarence and Mr. and Mrs. B~ respectively. In both cases
the presumption in favor of the subsequent marriage was rebutted (a common-law marriage
in Moots and a ceremonial marriage in Beaudin).
Similarly, there was no evidence concerning whether the prior spouses had been divorced
in Adams, while in Beaudin they lived together right up to the subsequent marriage and in Moots there was evidence that the errant prior spouse had made conflicting statements about
whether his prior marriage ever terminated. In the D~ matter, there is the statement by Agnes that a third party had told her the prior
marriage was terminated. On the other hand, there is evidence that no divorce was
recorded in Michigan or Ingham County and that on one form Agnes indicated the prior
marriage ended only with Lorenzo's death in 1958. This is a mixed bag and none of
it is very positive concerning whether there was or was not a divorce (except that
there was no divorce in Michigan).4/ Agnes' response on the form may be somewhat similar
to the conflicting statements in Moots but, as noted above at page 15, it may not be certain what Agnes intended to say
when only completing a blank on a form in one or two words. We believe that this collection
of evidence concerning termination of the prior marriage must be characterized as
an absence of positive information, as in Adams.
The second most significant feature of the evidence is that the subsequent marriage
in the Dolsen matter is common-law and both Adams and Moots suggest that this weakens the strength of any presumption of validity raised on its
behalf in comparison with a presumption of validity of a subsequent ceremonial marriage.
However, both Adams and Moots accept that the presumption can be raised for the common-law marriage.'—
Finally, we believe that Michigan courts have referred to facts concerning the length
of the subsequent marriage and of the interim period between prior and subsequent
marriages, as well as to the birth of children, in order to have a better sense of
whether public policy should sustain the subsequent marriage based on a presumption.
In Beaudin, for example, the court noted that there was virtually no interim between the prior
marriage relation and the subsequent one and that the latter lasted intermittently
for about three months. The Beaudin court was quick to assert that no presumption of validity of such a subsequent marriage
(even through ceremonial) could be sustained. In Moots there were several intermediate common-law marriages after the prior marriage and
before the subsequent marriage which were involved in that case. Each followed immediately
upon the other and the final, subsequent marriage lasted just three years. By contrast,
in Adams the interim period between marriages lasted eight years and the subsequent marriage
twenty-one years. In the D~ matter, the interim was ten years and the subsequent marriage
We have not discussed the factual basis of the Watts decision because the Adams court criticized the result reached in that case. Watts appears to us to be similar to the D~ matter in most respects and to Adams in everything except that the latter case involved a subsequent ceremonial marriage.
In Watts, unlike Adams, the result was that the presumption of validity of the subsequent, common-law marriage
was rebutted rather than sustained.
Based on all of the foregoing comparisons, we conclude that, under the authority of
the Adams decision, the Michigan Supreme Court would hold that the presumption of validity
of the subsequent, common-law Dolsen marriage was raised and was not rebutted by the evidence shown. This result would be attributable
primarily to the absence of significant and positive evidence concerning the whereabouts
of Lorenzo, his date of death, and termination of the prior marriage in other places
than Michigan and to the extensive time lapsing between the prior and subsequent marriages
and the extensive time during which the latter endured and three children were born.
In the hope that it might assist you to picture our comparative evaluations of critical
features of the cases, we have appended a table of comparison.
We also conclude that the prima facie case of common-law marriage would not be defeated
by the inconclusive and mixed evidence concerning legal capacity, since the party
attacking validity of the marriage would bear the burden "to show that the marriage
is invalid." Leonard, 207 N.W. 2d at 168.
1_/ We would emphasize that these principles, to the extent they affect common-law
marriages, are applicable only to common-law marriages entered into prior to January
1, 1957, as is true in the case of James D~ here. By statute, Michigan bars contracting
common-law marriages after that date. Mich. Star. Ann., §25.2.
2_/ Note, however, our comment, above at page 2, that these issues are subject to
3_/ The distinction between these two positions is we11 illustrated in the immediate
juxtaposition of the rationale quoted from Braymer with that reached by the court in Leonard, though the Leonard court was apparently unaware of its shift in ground:
The (Braymer) Court ... stated:
"... Assuming . .. that plaintiff made a prima facie case of the existence of the
common-law marriage, ... a presumption of its validity was established, and ... the
burden then shifted to defendants to prove ... that she had previously been married
and that that marriage had not been dissolved ... In the light of this record it is
unnecessary for us to determine the exact extent of defendants' burden, because plaintiff's
previous marriage was undisputed, and the testimony shows that this marriage had not
Here (in Leonard) too ... (b)oth of the prior marriages ... are undisputed and no competent evidence
was ever offered to show either was terminated. 207 N.W. 2d at 170. (emphasis added).
Braymer turned on the fact that some evidence showed that the prior marriage was not terminated;
Leonard turned on the different ground that no evidence was adduced to show the prior marriages
4_/ In Moots there was knowledge of the errant spouse's whereabouts and therefore divorce records
were able to be checked "in all the places where either Clarence or Mary had ever
lived." 349 F. 2d at 520.