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
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
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.
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.