PR 05610.055 Wisconsin

A. PR 82-035 Applicability Of Common Law Marriage “Sojourn Doctrine” In Wisconsin - Leo L~, DWE, ~, Arlene L~, Claimant

DATE: August 4, 1982


MARRIAGE - Cohabitation and Reputation (Including Common-Law Marriage)

A brief “sojourn” in a State recognizing common-law marriages will be recognized in the parties' state of domicile or residence if the state of domicile or residence generally recognizes common-law marriages based upon brief visits to common-law marriage states, and the requirements for a common-law marriage in the state visited is satisfied. Wisconsin does not generally recognize common-law marriage based upon brief visits to common-law marriage states. (L~, Leo, DWE, ~ - RA V (DORN) to ARC - 8/4/82)


This is in response to your request for our assistance in determining whether Arlene L~ is entitled to benefits as the widow of Leo L~. We conclude, for the reasons set forth below, that Arlene is not entitled to benefits.

The relevant facts may be briefly summarized: Arlene and the wage earner began living together in Blair, Wisconsin in February, 1965. Arlene claims that sometime in March, 1965 (the exact date is uncertain), she and the wage earner went to Waterloo, Iowa with the intention of getting married. Arlene's statements with respect to this brief - one night - trip to Iowa are unclear, uncorroborated, and contradictory. However, in view of our ultimate decision in this case, we accept the version of events most favorable to her: Arlene and the wage earner went to Iowa with the intention of obtaining a license and going through a marriage ceremony. However, because of a snowstorm they were unable to do either. Instead, they agreed to consider themselves as married without benefit of a license or a ceremony. 1/ They spent the night in Iowa and returned to Wisconsin the next day. -It is not clear whether the parties held themselves out as husband and wife during their brief stay in Iowa.

The parties subsequently lived together in Wisconsin as husband and wife until the wage earner died on August 5, 1976. There is substantial evidence that Arlene and the wage earner publicly held themselves out as husband and wife in Wisconsin, and it is unnecessary to set forth this evidence in any detail. The parties did not again travel to Iowa, nor did they obtain a marriage license or solemnize their marriage in Wisconsin at any time prior to the wage earner's death.

Wisconsin abolished common law marriages in 1917. Moreover, Wisconsin does not recognize “putative” marriages. While Wisconsin law does provide for the validation of prohibited marriages upon removal of the impediment and continued cohabitation, the parties must have originally gone through a marriage ceremony. Wis. Stat. Ann. Sec. 765.24 (West). Therefore, Arlene and the wage earner were not married under Wisconsin law. However, Iowa does recognizes common law marriages. In re Marriage of Wine~ard, 278 N.W.2d 505 (Iowa 1979). Thus, the issue in this case is whether Wisconsin will recognize the common law marriage of its residents based upon a brief visit to Iowa. We answer this question in the negative.

In a series of recent opinions, this office has determined that a brief “sojourn” in a state recognizing common law marriages will give rise to a common law marriage which will be recognized in the parties' state of residence or domicile if the following conditions are met: (1) the state of domicile or residence generally recognizes the common law marriages of its residents based upon brief visits to common law marriage states, (2) the parties enter the state of sojourn with existing martial intent (as evidenced by agreement, cohabitation, and repute in the state of domicile or residence), and (3) the sojourn itself satisfies the sojourn state's requirements for a common law marriage. 0~, Pedro, ~ ~__~RA V (Dorn) to ARC-RSI, Chicago, 4/6/79. Based on these criteria, we've made determinations for four states in Region V regarding whether such states will recognize the common law marriages of their residents or domiciliaries based upon brief visits to other states. We have determined that Illinois and Minnesota do not recognize such marriages. 1_/ However, both Michigan and Indiana will recognize such marriages. 2/ These determinations are currently summarized in CM R2465.5.

We now determine that Wisconsin, like Illinois and Minnesota, will not recognize the common law marriages of its residents or domiciliaries based upon brief visits to common law marriage states. 3/ In Van Schaick's Estate, 40 N.W.2d 588 (Wis. 1949), the Wisconsin Supreme Court held that a common law marriage had not been established on the basis of several brief visits of the parties (who were Wisconsin residents) to Texas. The Court's decision was based on former Section 245.04 of the Wisconsin statutes, which provided that a marriage prohibited under Wisconsin law and contracted in another state by any person “residing and intending to continue to reside in this state” was void in Wisconsin. The decision in Van Schaick's Estate has not been modified or limited by any subsequent decision. Moreover, the statutory provision invoked in Van Schaick's Estate still exists in substantially similar form (now codified at Wis. Stat. Ann. Sec. 765.04(West)). In Lorence, Walter (see footnote 1), we relied on similar statutory provisions 4/ and court decisions 5/ in concluding that Illinois will not recognize the common law marriages of its residents or domiciliaries based upon brief visits to common law marriage states. Accordingly, we reach a similar conclusion with respect to Wisconsin.

While this conclusion effectively resolves the issue of the claimant's entitlement to benefits, we briefly address an additional issue raised in prior opinions regarding “void” and “voidable” marriages in Wisconsin. We have indicated that a marriage declared “void” under Wisconsin law may in fact be “voidable” (and thus capable of being validated) if its impediment is capable of being removed, even' if validation of the marriage is not prescribed by statute or the impediment is not removed in the specific manner prescribed by statute. Z~, Dennis T., S~/~-/-.~RA V (Dorn) to Director, Office of Insurance Programs V, 11/12/80; J~, Robert M., ~, RA V (Weinstein~ to ARC-RSI, Chicago, 12/27/78. 6/

However, we believe that this analysis is inapposite to common law marriages. In a bigamous or underage marriage, a marriage has taken place, as evidenced by a license and a ceremony, but the parties lack the capacity to marry due to an impediment (in one case, a prior existing marriage, and in the other case, lack of marriageable age). Once the impediment is removed (by dissolution of the prior existing marriage due to death or divorce, or by both parties coming of age), the original marriage becomes validated. Even in a truly “void” marriage (such as an incestuous marriage), a marriage also has taken place, although the parties lack the capacity to marry due to an impediment which cannot be removed. Each of the above examples presents a situation of a “marriage but for the lack of capacity” or a “marriage but for an impediment.” By contrast, a common law “marriage” is “no marriage” at all, and thus stands on a different footing. Here, the parties have the capacity to be married (assuming none of the above impediments are present), but have not entered into a marriage at all. The common law “marriage” is “validated” only by the parties' obtaining a license and going through a ceremony, and, of course, at that point the validity of the original “marriage,” unlike the situation in the other cases above, is irrelevant. Thus, a common law “marriage” is neither a “void” nor a “voidable” marriage, but is simply “no marriage.” 7/ Even if it were appropriate to consider a common law “marriage” as being “voidable,” such “marriage” was not “validated” in the instant case, as the parties never obtained a license or went through a ceremony.

For similar reasons, we do not believe that Wis. Stat. Ann. Sec. 767.03, which establishes a ten year limitation on annulment of marriages, operates in any way to “validate” the claimant's “marriage.” In Ginkowski v. Ginkowski, 137 N.W.2d 403 (Wis. 1965), the Wisconsin Supreme Court held that failure to bring on action for annulment of a void marriage within ten years of the date of the marriage extinguished the right, as well as the remedy, of annulment, and therefore validated the marriage. In the instant case, Arlene's “marriage” to the wage earner lasted over ten years until the wage earner's death. But we believe that annulment is relevant only where a marriage has taken place and is flawed due to the incapacity of the parties. In short, one cannot annul a “marriage” that never took place.

Therefore, we conclude that the claimant was not the wife of the wage earner under Wisconsin law and is not entitled to benefits on his account.

1_/ Because of our ultimate decision in this case, it is likewise unnecessary to determine whether this agreement was written or oral, or express or implied.

l/L~ , Walter, ~,~RA V (Dorn) to ARC-~.~I, Chicago, 1/15/80 (Illinois) ; “Recent Minnesota Court Decision ~n Common Law Marriages - Sojourns to Other States,” RA V (Dorn) to ARC-Programs, Chicago, 4/1/80. See also Laikola v. Engineered Concrete, Inc., 277 N.W.2d 653 (Minn. 1~9~, in which the Minnesota Supreme Court expressly decided the issue. We note that both Illinois and Minnesota will recognize the common law marriages of parties who are residents or domiciliaries of common law marriage states at the time of contracting a common law marriage, even though the parties subsequently reside or become domiciled in Illinois or Minnesota.

2/ J~, Abe, ~~RA V (Dorn) to Director, GLPSC, 7/13/79, Michigan); K~, ~nthony, 1/4/80 (Indiana).

3/ Because of this conclusion, we do not determine whether the other two criteria for application of the “sojourn doctrine” are met.

4/ Ill. Ann. Stat. ch. 40 Sec. 216 (Smith-Hurd).

5/ Estate of Stahl, 301N.E.2d 82 (Ill. 1973); Estate of Enoch, 201 ~.E.2d 682 (Ill. App. 1964).

6/ These opinions have relied on several recent Wisconsin court decisions. Halker v. Halker, 285 N.W.2d 745 (Wis. 1979); Smith v. Smith, 190 N.E.2d 174 (Wis. 1971); Cornin~ v. Carriers Insurance Co., 276 N.W.2d 310 (Wis. App. 1979).

7/ Strictly speaking, a “marriage” entered into without benefit of a Ticense or solemnization, as required by Wis. Stat. Ann. Sec. 765.16 (West), is declared “void” under Wisconsin law. Wis. Stat. Ann. Sec. 765.21 (West). Nevertheless, for the reasons already discussed, we do not believe such a “marriage” to be of the same nature as a marriage which has been entered into pursuant to a license and solemnization but which is flawed due to an impediment affecting the capacity of the parties.

B. PR 79-016 Russell T. B~--Social Security No. ~-- Deceased Wage Earner, Validity Of Marital Relationship Under Oregon

DATE: June 8, 1979


Where couple who lived together as husband and wife in Oregon (which does not recognize common-law marriages) made several trips to the Canadian Province of British Columbia, a valid common-law marriage cognizable in other jurisdictions could have arisen based on their sojourn there, if British Columbia regards common-law marriages as valid. (B~ Russell T. -- ~ -- GC (Lifefledge) to SEA

0D 0120

Under the “sojourn doctrine” if two persons cohabit as husband and wife in a jurisdiction where their relationship does not constitute a valid marriage and later sojourn into a jurisdiction where no impediment exists to their marriage, their relationship may mature into a valid marriage in the latter jurisdiction and be recognized as valid elsewhere. (~, Russell T. -- ~ -- GC (Lifefledge) to SEA

OD 0120

Although, the Canadian Province of British Columbia recognizes common-law marriages for limited purposes, that recognition does not include recognition for purposes of inheritance of in- testate personal property as required under section 216(h) (1) of the Social Security Act. Consequently, a sojourn in British Columbia by persons who reside in Oregon (which does not recognize common-law marriages) would be insufficient to establish a common-law marriage for social security purposes. (B~ Russell T.--~-- GC (Liferiedge) to SSA- 6/8/79)


You have asked whether the state of Oregon would recognize as valid a common-law marriage which purportedly arose in British Columbia, Canada.

The facts are as follows: the claimant and the wage earner lived together as husband and wife in the state of Oregon until the WE's death in 1978. However, in 195~ when the relationship began, claimant had a prior undissolved marriage which subsequently ended with the death of her “first husband” in 1961. After the death of her legal spouse claimant and the WE continued to live together in Oregon. Although, Oregon does not permit common-law marriages to be contracted in that state, c