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" (Statement of Claimant or Other
Person, 9/26/85). Iowa law requires, inter alia, that parties claiming the existence
of a common law marriage demonstrate "a present intent to be husband and wife, followed
by cohabitation;" and it is clear that mere cohabitation alone is not legally sufficient.
Newton
v. Lehman, 244 N.E.2d at 833 (Ill. App. 1969), citing Pegg
v. Pegg, 138 Iowa 572,575, 115 N.W. 1027, 1028 (1908) (a mere written or Oral agreement to
be husband and wife, without present intention to assume the relation in fact, does
not constitute a marriage between the parties). Consequently, the fact that the parties
herein intended to undergo a ceremonial marriage raises an issue of whether they ever
presently intended to assume the marital relationship itself. However, because we
want to reach the specific question raised by your memorandum, we have assumed that
the marital intent requirement has been met.
4/ Additionally, in both the L~ and T~ opinions we relied upon varying characterizations
of the following language in Pierce
v. Pierce, 39 N.E.2d at 993:
The rule (that a common law marriage is void in Illinois even if performed in some
other jurisdiction), however, is limited to the situation where the parties whose
marriage is sought to be upheld in Illinois were, at the time of the marriage, domiciled
in Illinois, although the marriage occurred in another State.
While in T~ we described this language as "mere dictum," in L~, we relied' upon the
above quoted passage as an integral part of the holding in Pierce. Because of our ultimate decision herein, we now confirm our characterization in
L~.
5/ Significantly, our holding in L~ is not inconsistent with many of our more recent
post-T~ decisions. For example, in Lester R. B~ , A/N ~ ,RA V (U~) to Director MAMPSC,
1/24/80, we held that where the wage earner and claimant were domiciled in Iowa when
they entered into their marriage contract, Illinois would recognize the marriage contract
even when no ceremony was performed and the parties were Illinois domiciliaries at
the time of the wage earner's death. Admittedly, L~ is inconsistent with many of our
opinions prior to B~ supra, including Unglesbee, supra. However, again, we submit that these opinions failed to focus upon the law
of the domicile of the wage earner at the time of entering into the marriage contract.