PR 05605.016 Illinois
A. PR 87-014 Recognition of Common Law Marriage Pete W~, A/N ~
DATE: September 8, 1987
MARRIAGE -- COMMON-LAW MARRIAGE -- ILLINOIS
Illinois' Non recognition of "Brief Sojourns" to Validate Common-Law Marriage of Illinois Domiciliaries
Illinois does not recognize the common-law marriage of its domiciliaries which arise out of brief sojourns to common-law marriage States. (W~, Pete, ~ -- RAV (J~), to ARC, Programs, 09/08/87.)
This is in reference to your memorandum requesting our assistance in determining whether a valid common law marriage existed between Pete W~, the wage earner, and Roberta F~ (W~ ), the claimant. This determination is dependent upon whether Illinois recognized a marriage between Illinois domiciliaries where that marriage is established by means of a sojourn through a state recognizing common law marriages during the period of September 1, 1954 to June 16, 1955.
The facts are as follows: The wage earner and the claimant ("the parties") began living together in Des Moines, Iowa in 1946, although the wage earner's ceremonial marriage to Viola W~ remained undissolved. In 1951, the parties began holding themselves out as husband and wife. The parties lived in Iowa for one year and then moved to Peoria, Illinois. On or about September 1, 1954, Viola B. W~ died. Subsequently, the parties continued to live together in Illinois. Between September 1, 1954 and June 16, 1955, the parties made several brief sojourns to Davenport, Iowa. On June 16 1955, the wage earner died in Illinois.
Under Section 216(h)(1)(A) of the Social Security Act, the law of the state in which the wage earner is domiciled at the time he dies determines whether the claimant is considered the common law wife of the wage earner for purposes of the Act. 1/ Illinois law controls since the wage earner died while domiciled in Illinois. Common law marriages contracted in Illinois have been invalid since 1905. Ill. Ann. Star. ch. 40, §214 (S~-H~ 1987); Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204, 1210 (Ill. 1979) (common law marriages were legislatively abolished in Illinois in 1905). Indeed, Illinois courts will closely scrutinize claims regarding the existence of a common law marriage and will view such claims with suspicion. Newton v. Lehman, 105 Ill. App.2d 422, 244 N.E.2d 830 (Ill. App. 1969).
However, Illinois courts have recognized the validity of common law marriages contracted outside the State. Pierce v. Pierce, 379 Ill. 185, 39 N.E.2d 990 (Ill. 1942) (a marriage valid where "celebrated" may be valid in Illinois). Therefore, it must be determined whether the parties' brief sojourns to Iowa during the period of September 1, 1954 through June 16, 1955 gave rise to a common law marriage under Iowa law, which would be recognized in Illinois. For the reasons outlined below, we conclude that Illinois will not recognize a common law marriage between Illinois domiciliaries, even when the marriage is valid in a foreign state which recognizes common law marriages established by means of brief sojourns through that State.
In the instant case, Roberta F~ (W~), the claimant, alleges that she was the common law wife of the deceased wage earner. Roberta also alleges that she began living with the wage earner in Iowa and that they subsequently moved to Peoria, Illinois. 2/ Roberta further alleges that she and the wage earner continued to live together in Illinois through the date of his death and that they made several brief sojourns to Iowa between September 1, 1954 and June 16, 1955.
We have previously held that "a brief 'sojourn' in a state recognizing common law marriages will give rise to a common law marriage in the state of sojourn which will be recognized in the state of domicile" where three specific criteria were met. Walter L~ , A/N ~ ,RA V (D~) to Director, GLPSC, 1/15/80. "'We noted that the criteria were:
(1) the state of domicile generally recognizes common- law marriages contracted in other states, (2) the parties enter the state of sojourn with existing marital intent (as evidenced by agreement, cohabitation, and repute in the state of domicile), and (3) the sojourn itself satisfies the state's requirements for a common law marriage.
Id.; citing, P~ , A/N ~, RA V (D~) to Director, GLPSC, 4/6/79.
The primary focus herein is upon the first requirement. Indeed, the second and third requirements are met. The parties apparently entered Iowa with continuing marital intent. 3/ Moreover, as noted in your memorandum, we have held in earlier opinions that brief sojourns through Iowa, along with cohabitation and repute in the state, is sufficient to establish a valid common law marriage in Iowa. James T~, A/N ~, RA V (B~) to Chief, GC-OASI, 1/2/52. In a 1952 opinion common law marriage even where the sojourn was "so short as a train, bus or auto trip through Iowa...[and where] the parties never spent a night in the state." Howard L. U~ , A/N ~ , RA V (B~) to Manager, OASI (5/15/52). Therefore, it would appear that the brief sojourns made by the parties herein were sufficient to constitute a valid common law marriage in Iowa.
Examining the first requirement above, as you note in your memorandum, our previous opinions in T~, supra, and L~, supra, are at odds with whether Illinois would recognize the existence of a common law marriage established by its domiciliaries by means of sojourn through a foreign common law marriage state. It appears that the contradiction between these cases is the result of varying interpretations of the Illinois Uniform Marriage Evasion Act ("the Act"), Ill. Stat. Ann. ch. 40, §216 (S~-H~), which may be resolved by focusing upon Illinois case law interpreting the Act. 4/
In T~ , the claimant and wage earner were domiciled in Illinois, but made regular visits to Michigan each year, a state which recognizes such sojourns, inter alia, as sufficient evidence of a common law marriage. The claimant and wage earner attempted a ceremonial marriage in Illinois, but the wage earner failed a blood test. However, they participated in a ceremonial marriage in Mississippi, which was later declared invalid since it had occurred within one year of the wage earner's death. In holding that Illinois law would recognize the common law marriage established by the regular sojourns to Michigan, we relied upon several cases in which the validity of the marital relationship was acknowledged where non-residents later moved to Illinois. See e.g., Young v. Young, 213 Ill. App. 402 (1920); see also, Acklin v. Employees Benefit Association, 222 Ill. App. 369 (1922).--'We further stated that "the Illinois Marriage Evasion Act does not apply to parties who leave Illinois to enter a valid common law marriage in another State and then return to Illinois."
Similarly, in L~, the claimant and wage earner were Illinois domiciliaries. The record demonstrated that agreement, cohabitation, and repute existed in Illinois, and that the parties therein traveled to several jurisdictions at least three of which recognized common law marriages, including Iowa. In holding that Illinois law would not recognize the brief sojourns in states that recognized common law marriages, we stated that the Illinois Uniform Marriage Evasion Act "provides that a marriage prohibited under Illinois Law and contracted in another state by any person residing and intending to reside in this state will not be recognized in Illinois." Lorence at 4.
Section 216 of the Illinois Uniform Marriage Evasion Act ("the Act") provides:
That if any person residing and intending to continue to reside in this state and who is disabled or prohibited from contracting marriage under the laws of this state, shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.
Ill. Stat. Ann. ch. 40, §216 (S~-H~). Significantly, section 216 of the Act appears today in the same form as it appeared in the original Act of 1915.
Moreover, in interpreting the Act, Illinois courts have long held that the law of the place were the marriage is celebrated will govern the existence of the marriage, except were the marriage violates a specific law where the parties are domiciled. In Re Enoch's Estate, 52 Ill. App.2d 39, 201 N.E.2d 682, 689 (1st Dist. lg64) (where a state has enacted a statute lawfully imposing upon its citizens an incapacity to contract marriage by reason of a policy of the state...a marriage contracted in disregard of the statutory prohibition, wherever celebrated, will be void in the state of domicile); see, Weinberg v. Weinberg, 242 Ill. App. 414 (1st Dist. 1926) (where marriage between first cousins was valid under Kentucky law, but specifically prohibited under Illinois law, such marriage will not be recognized by Illinois); see also, Schwartz v. Schwartz, 236 Ill. App. 336 (1925) (marriages contracted foreign state or country by residents of Illinois are not valid in this state where "prohibited and declared void by the laws of this state").
Our review of Illinois law requires us to conclude that the 1980 L~ opinion supersedes any contrary holding in the 1952 T~ opinion. In ~ ,supra, we observed that the parties therein had attested a ceremonial marriage, but that the attempt was invalidated because the wage earner could not pass a blood test, as required by the Illinois Uniform Marriage and Divorce Act. We then focused upon an artificial distinction between personal and legal incapacity, noting that the requirement that "parties present a certificate setting forth they...are free from venereal disease before being issued a marriage license is directory only," and thus, merely a personal incapacity. Id. at 4. However, the blood test requirement should not have been our primary focus. Our focus should have been placed upon the fact that the parties were domiciled in Illinois and that there was a specific Illinois statutory provision which declared common law marriages between Illinois domiciliaries void. Had we emphasized the domicile of the parties at the time of creation of the alleged marital contract and correctly interpreted the Illinois Uniform Marriage Evasion Act, the rules of Weinberg., Schwartz, and Pierce, supra, would have led to a different outcome.
Conversely, in L~, supra, we correctly observed that domicile of the parties at the time they purported to create a marriage contract was Illinois and that Illinois specifically prohibited common law marriages. We further observed that in In Re Estate Of Stahl, 13 Ill. App.3d 680, 301 N.E.2d 82 (1st Dist. 1973), an Illinois appellate court specifically addressed this issue. There, the court focused upon the issue of domicile at the time the parties purported to enter into the marriage contract. The court held that while the parties had made several visits to Texas, "the evidence only suggests a future intent to permanently reside in Texas. 301 N.E.2d at 83. The court further held that such future intent was clearly insufficient to establish a Texas domicile, and thus, to escape the express prohibition against common law marriages between Illinois domiciliaries found in Illinois law. Id. Consequently, we believe that the reasoning and holding in L~ is consistent with both pre-T~ and post-T~ case law. Therefore, the L~ holding supercedes all other cases in which a valid marriage is sought to be established by means of sojourn through a state recognizing the validity of common law marriage. 5_/
Turning now to the case presented by your memorandum, the parties herein were Illinois domiciliaries at the time they attempted to form their marriage contract. According to Roberta, the wage earner and she lived together in Illinois and they began holding themselves out as husband and wife after the birth of their children in 1951 and continued to do so through the date of his death. We have noted herein that Iowa probably would recognize the existence of a valid common law marriage between Roberta and the wage earner based upon their brief sojourns to that state. However, Illinois will not recognize the common law marriage between the wage earner and claimant, since they were Illinois domiciliaries at the time of creation of the marriage contract and since Illinois law expressly prohibits common law marriages. Accordingly, we are of the opinion that the wage earner and claimant were not legally married.
1/ Domicile refers to "the place of an individual's true, fixed and permanent home, and to which, whenever he is absent he has the intention of returning." Lester R. B~ ,A/N ~, RA V (U~) to Director, MAMPSC, 1/24/80.
2/ The fact that the wage earner had a previously undissolved marriage at The time of his cohabitation, repute and agreement with the claimant prevents a consideration of whether a valid marriage contract was created while the parties were domiciled in Iowa. See, Lester R. B~, A/N ~ RA V (U~) to Director, MAMPSC, 1/24/80 (a wage earner cannot enter valid contract before the legal termination of an existing marriage).
3/ Here, it must be noted that there is a question whether the parties' relationship met the marital intent requirement. Roberta stated: "we intended to get married, but never went through a ceremony because he died in 1955" (S