common law marriage in california

GARZA MACRO 2/15/2006 11:01 AM COMMON LAW MARRIAGE: A PROPOSAL FOR THE REVIVAL OF A DYING DOCTRINE SONYA C. GARZA* The twentieth century led to a destruction of common law marriage throughout American states. Today, only eleven states and the District of Columbia recognize common law marriage.1 In this paper, I will review the past and present of common law marriage in advocating for a revival of the recognition of common law marriage throughout America. In Part I of the paper I will focus on the history of common law marriage and its subsequent destruction. In Part II of the paper I will discuss the destruction of common law marriage. In Part III of the paper I will review common law marriage as it exists today. In Part IV of the paper I will discuss the current legal alternatives to common law marriage. In Part V of the paper I will advocate for a revival of common law marriage throughout the United States. I. THE HISTORY OF COMMON LAW MARRIAGE Common law marriage originated “in Europe prior to the Reformation.”2 “Marriage was regarded as a private affair, a thing between families, rather than a matter in which the state . . . had an interest.”3 Common law marriage was not only recognized under English common * 1. 2. 3. Assistant Professor of Law, New England School of Law. The University of Texas, B.A.; Stanford Law School, J.D. The author would like to thank her mother, Diana Garza, and colleague, Professor Russell Versteeg, for their comments on an earlier draft of this article. In addition, the author would like to thank the editors at the New England Law Review for their hard work. See Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 U.C.L.A L. REV. 815, 849 (2005). Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 718 (1996). Id. 541 GARZA MACRO 2/15/2006 11:01 AM 542 NEW ENGLAND LAW REVIEW [Vol. 40:541 law but as the law of the Catholic Church.4 In 1753, English Parliament passed Lord Hardwicke’s Act, which required marriage ceremonies to be performed by officials of the Church of England.5 By the time of the passage of the Act in 1753, common law marriage had been adopted in some colonies in America. Some of the original colonies drafted legislation requiring marriage regulations while others adopted common law marriage under English common law.6 Many scholars make the singular argument that common law marriage expanded to the western United States and was a consequence of frontier conditions.7 In other words, due to sparse conditions in the west in nineteenth-century America, the lack of religious officials to perform marriage ceremonies and difficulty of traveling, the western states had no choice but to recognize common law marriage. “Under these circumstances, men and women married in many areas simply by agreeing to be married, setting up a household together, and representing that they were husband and wife.”8 In the smaller communities of the west, other members were usually aware as to whether or not the cohabiting couple held themselves out as husband and wife.9 That said, the theory that most western states adopted common law marriage due to the necessities of the frontier lifestyle is not all true. Many western states were affected by their individual histories of prior rule under the French, Spanish, and Mexican.10 Native American law also influenced the adoption of common law marriage in some states.11 Again, “there can be no single explanation for the adoption of common law marriage in some states and its prohibition in others.”12 While 4. 5. 6. 7. 8. 9. 10. 11. 12. See id. at 719. See id. Massachusetts regulated marriage by statute requiring marriage ceremonies officiated by a clergyman or magistrate. On the other hand, New York adopted English common law, therefore accepting the tenets of common law marriage. See id. at 719-20. See LAWRENCE M. FRIEDMAN, PRIVATE LIVES: FAMILIES, INDIVIDUALS, AND THE LAW 19-20 (2004). Bowman, supra note 2, at 723. See id. See id. at 724-28. For example, Louisiana law reflected Napoleonic principles which required civil marriage. While Spanish and Mexican law prohibited common law marriage, the only state under the previous rule of these countries that prohibited common law marriage was New Mexico. Other states under such rule were affected by social norms. Informal marriage continued to be common among Hispanic residents of certain western states, so California, Arizona, and Texas all recognized common law marriage at the latter part of the nineteenth century. See id. at 730-31. Id. at 731. GARZA MACRO 2/15/2006 11:01 AM 2006] COMMON LAW MARRIAGE 543 some colonies followed English common law, other regulated marriage by legislation. While some western states were affected by the laws of prior rulers, others were more affected by the social norms of their citizens. II. THE DESTRUCTION OF COMMON LAW MARRIAGE Prior to the latter part of the nineteenth century, common law marriage was widely recognized throughout the United States. At this time in the country’s history, common law marriage was a means of protecting the property interests of women and solidifying the legitimacy of children.13 Since there was almost never any actual evidence of the marriage, the courts assumed that a marriage existed due to the existence of a stable relationship, cohabitation, and children.14 Professor Lawrence Friedman states the uniqueness of the United States and its reasons for adopting common law or informal marriages: The United States was, in a sense, the first middle-class country. No factor explains more of the twists and turns in American law, and the nature of American society in the nineteenth century in general. The United States was the first country in which ordinary people owned some capital: a farm, a plot of land, a house. Questions of title, inheritance, and mortgage do not enter the lives of people who have nothing and own nothing—serfs, tenant farmers, and the like. Once people have property, once they own something, they become consumers of the products of the legal system. Now family law becomes significant for them. A man is dead; he owned an eighty-acre farm. Is this woman his widow? Are these children legitimate heirs?15 The decline in the recognition of common law marriage began with the increase in population that occurred between the Civil War and the end 13. See Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957, 968-69 (2000). The vast majority of cases in which courts across jurisdictions pondered the validity and desirability of common law marriage shared a common sociological backdrop: female economic dependency. Almost all common law marriage cases involved women in need of financial support, and most were initiated by female plaintiffs. In many cases, a woman whose long-term domestic partner had died or deserted her came to court seeking judicial recognition of her terminated relationship as marital to enable her to inherit as a widow or to seek support as an abandoned wife. 14. 15. Id. See Friedman, supra note 7, at 20. Id. GARZA MACRO 2/15/2006 11:01 AM 544 NEW ENGLAND LAW REVIEW [Vol. 40:541 of World War I. The population increase lead to urbanization and a change in the economy of the United States.16 At the end of the nineteenth century and the beginning of the twentieth century many states began to abolish common law marriage.17 Due to the change in frontier culture, many state governments began to reason that there was no longer a need for recognition of informal marriage. In addition to the transition to urbanization and transformation of the economy, the state governments had other reasons for abolishing common law doctrines. First, the states feared fraudulent claims under common law marriage laws.18 Second, the states began to emphasize the importance of the institution of marriage. Marriage was seen as the “model and foundation of society and government.”19 Third, the states feared interracial marriage and were concerned about eugenics. In the latter part of the nineteenth century and early part of the twentieth century the majority of states had anti-miscegenation laws but interracial marriages could still technically be recognized under common law marriage doctrines.20 In addition, states wanted to “mak[e] it difficult or impossible for immature, mentally disordered, mentally defective, mismated, bewildered, or alcoholic men and women to get married.”21 Common law marriage doctrine did not prevent against such marriages. As the twentieth century proceeded, the list of state concerns regarding common law marriage became longer. In addition to all the concerns listed above, further changes in society led to increased abolition of common law marriage in more states across America. First, states became concerned that without certainty regarding family status, third parties would suffer consequences of not knowing if a party is truly a spouse, a widow, or a widower.22 For example, states became concerned 16. 17. 18. 19. 20. 21. 22. See Bowman, supra note 2, at 732. Common law marriage was abolished in Alaska in 1917, Arizona in 1913, Arkansas in 1911, California in 1895, Illinois in 1905, and North Dakota in 1890. Id. See id. at 733-35. “The decline of common law marriage reflects the sad fact that litigation-based determination of marital commitment ‘leads to fraud and uncertainty in the most important of human relationships.’” Garrison, supra note 1, at 850 (quoting HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 59 (West 1987) (1968)). Bowman, supra note 2, at 736. See id. at 738. Id. at 739-40 (alteration in original) (quoting MORRIS PLOSCOWE, SEX AND THE LAW 16 (1951)). Margaret M. Mahoney, Forces Shaping the Law of Cohabitation for Opposite Sex Couples, 7 J. L. & FAM. STUD. 135, 183-85 (2005) (addressing the current case of PNC Bank Corp. v. Workers’ Comp. Appeal Bd., 831 A.2d 1269 (Pa. Commw. Ct. 2003), in which the Commonwealth Court of Pennsylvania called for the abolition of GARZA MACRO 2/15/2006 11:01 AM 2006] COMMON LAW MARRIAGE 545 with the distribution of government benefits upon death.23 This concern was tied to the fear of fraudulent claims. The concern was having fraudulent spousal claims brought through common law marriage doctrines. Second, the court became increasingly concerned with the administrative and judicial efficiency of litigating common law marriage claims.24 Not only would such cases be costly, but there were strong evidentiary problems in that most cases lacked clear documentation of the informal relationship. Because it was helpful “for business reasons” to be able to prove or disprove marriage by the civil registry of licenses, the abolition of common law marriage continued.25 III. THE STATE OF COMMON LAW MARRIAGE TODAY Even with the destruction of common law marriage in most states, parties continue to believe in its existence. In other words, the destruction of the common law marriage doctrine has not stopped couples from entering into relationships they believe are informal marriage. “Apparently, the law in a particular state does not dictate whether people enter into formal or informal marriages, so much as other social, economic, and cultural factors do.”26 The consequences of such a belief are harsh. In jurisdictions that do not recognize common law marriage, parties may end a relationship they believed was an informal marriage and have no recourse in ending that relationship. Today only eleven states and the District of Columbia recognize common law marriage.27 States usually recognize common law marriage when a ceremonial requirement of civil marriage has not been met or as an alternative method of union.28 As a way of illustrating the current common law marriage law in those states which recognize the doctrine, I will review the Texas and Utah common law marriage doctrines. Of the twelve jurisdictions that recognize 23. 24. 25. 26. 27. 28. common law marriage in Pennsylvania due to the interests of third parties in this context). See Bowman, supra note 2, at 746. See id. at 752. See id. See id. at 753. See Garrison, supra note 1, at 849. The jurisdictions that recognize common law marriage are as follows: Alabama, Colorado, District of Columbia, Idaho, Iowa, Kansas, Montana, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah. Bowman, supra note 2, at 715 n.24. See Hon. John B. Crawley, Is the Honeymoon Over for Common-Law Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 CUMB. L. REV. 399, 403 (1999). GARZA MACRO 2/15/2006 11:01 AM 546 NEW ENGLAND LAW REVIEW [Vol. 40:541 common law marriage, Texas and Utah are the only two that have “strict limitations on its establishments” or a statute of limitations for establishing such an informal marriage.29 A. Common Law Marriage in Texas The Texas Family Code provides as follows: In a judicial, administrative, or other proceeding, the marriage of man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.30 There are two ways to establish the existence of an informal marriage. The parties may either execute a written declaration of marriage or meet the “test” for informal marriage.31 The requirements for filing of a written declaration are more obvious. Less obvious and subject to scrutiny is the standard or legal test for establishing an informal marriage. First and foremost, the parties must have the capacity to marry as defined for both formal and common law marriage.32 In addition, parties must provide evidence showing: (1) an agreement to be presently married; (2) cohabitation in Texas after the agreement; and (3) holding out to others that the parties are married.33 First of all, the parties must agree to be presently married. The parties must intend to have a “present, immediate, and permanent marital relationship,” not just to be married some time in the future.34 Second, the parties must cohabit in Texas after the agreement. Cohabitation is more than a “situation[] involving a frequent overnight guest or someone who stores personal property at someone else’s home.”35 Last, and often the most difficult to prove, the parties must hold themselves out to others as married. “[P]roof of common law-marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as 29. 30. 31. 32. 33. 34. 35. Garrison, supra note 1, at 849 & n.142. TEX. FAM. CODE ANN. § 2.401(a) (Vernon 2005). Sonya C. Garza, Common Law Marriage in Texas, THE TEXAS DOCKET, Apr. 2003, at 12. See generally TEX. FAM. CODE ANN. §§ 2.001, 2.002, 2.101, 2.102, 2.401 (Vernon 2005). TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 2005). Flores v. Flores, 847 S.W.2d 648, 650 (Tex. Ct. App. 1993). Allen v. Allen, 966 S.W.2d 658, 661 (Tex. Ct. App. 1998). GARZA MACRO 2/15/2006 11:01 AM 2006] COMMON LAW MARRIAGE 547 husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.”36 Parties can often provide documentation of such “holding out” through joint tax returns, joint checking account statements, or insurance policies naming the common law spouse as such.37 The most important and stringent requirement of informal marriage in Texas is as follows: If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.38 Texas has a statute of limitations regarding common law marriage, two years following separation or end of cohabitation, which solves concerns regarding administrative and judicial efficiency and the possibility of fraudulent claims. As will be stated below, Utah also has a statute of limitations regarding actions for common law marriage. B. Common Law Marriage in Utah Utah provides an excellent example for the current state of common law marriage not only because it provides for a statute of limitations for the establishment of common law marriage, but because common law marriage was abolished in Utah and resurrected again in 1987.39 The Utah statute states: (1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who:(a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage under the provisions of this chapter; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as 36. 37. 38. 39. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). Garza, supra note 31, at 13. TEX. FAM. CODE ANN. § 2.401(b) (Vernon 2005). See Bowman, supra note 2, at 749. “Utah was previously one of the states most opposed to common law marriage, presumably based on fears that the institution would be used as a way to reestablish polygamy.” Id. Utah’s primary reason for resurrecting the doctrine of common law marriage “was specifically to prevent couples from excluding one person’s income when applying for Aid to Families with Dependent Children (AFDC).” Id. at 749-50. GARZA MACRO 2/15/2006 11:01 AM 548 NEW ENGLAND LAW REVIEW husband and wife.40 [Vol. 40:541 While subsection (d) does not state “cohabitation” as the general requirement here, mutually assuming “marital rights, duties, and obligations” assumes cohabitation or a shared household. For those jurisdictions recognizing common law marriage, the standards are similar to those of Texas and Utah.41 Again, Texas and Utah are the only two jurisdictions which take the common law marriage doctrine one step further in stating a clear statute of limitations to establish the informal relationship. Utah’s statute of limitations is even shorter than that of Texas. “The determination or establishment of a marriage under this section must occur during the relationship described . . . or within one year following termination of that relationship.”42 Again, the statute of limitations requirements presumably cuts down on the possibility of fraudulent claims.43 IV. THE CURRENT ALTERNATIVES TO COMMON LAW MARRIAGE A. Recognition of Marriage Through Contract In the case of Marvin v. Marvin, the California Supreme Court recognized the rights of non-marital partners through contract.44 Lee Marvin and Michelle Triola were romantically involved and lived together for six years. Lee asked Michelle to move out after six years and shortly thereafter refused to provide her with monetary support. Michelle sued alleging the couple entered into an oral contract where the parties agreed to share their efforts and earnings. In exchange Michelle agreed to give up her career to serve as a homemaker to Lee. The plaintiff sought relief of half of the property acquired during the relationship based on contract.45 The court held that express contracts between non-marital partners should be enforced unless consideration is based on sexual services and therefore contrary to public policy. In addition, in the absence of an express contract, the court should inquire into the conduct of the parties to determine if there is an implied contract.46 40. 41. 42. 43. 44. 45. 46. UTAH CODE ANN. § 30-1-4.5 (2003). Judge John B. Crawley notes that the requirements for common law marriage in Alabama are capacity, present agreement, and “public recognition” as man and wife. Crawley, supra note 28, at 405. UTAH CODE ANN. § 30-1-4.5(2) (2003). Bowman, supra note 2, at 749. 557 P.2d 106, 110 (Cal. 1976). Id. Id. GARZA MACRO 2/15/2006 11:01 AM 2006] COMMON LAW MARRIAGE 549 Since the holding in Marvin, several states have adopted its holding and reasoning.47 The recognition of non-marital partners through contract has its limitations though. First, “[t]he implied-contract analysis proposed by Marvin interjects more questions as to the intent of the parties than an application of [the] common-law marriage doctrine.”48 In other words, the common law marriage doctrine, as it exists in certain jurisdictions today, provides clear standards for interpreting the intent of the parties while recognition in contract does not. Second, recognition of non-marital partners through contract fails to address situations involving government benefits—namely worker’s compensation and social security.49 Third, recognition of non-marital partners through contract is “tailored primarily to the middle class,” assisting only those who acquire property and contract about its division at the termination of the relationship.50 Recognition through contract does not address the needs of non-marital partners who may be seeking relief for domestic violence at the end of a relationship or those who have minimal property to provide relief upon termination of the relationship. B. The Conscription Approach Due to the increase in cohabitation of non-marital couples, many industrialized nations have adopted what is now referred to as the “conscriptive” model. “The conscriptive model imposes on the cohabitating couple that has chosen to avoid marriage some or all of the obligations the couple would have incurred had they chosen to marry.”51 For example, in some Canadian provinces, there is a support obligation for non-marital cohabitants who have lived together for one to three years; Australian states extend marital property rights to non-marital cohabitants who have a common child or who have lived together for at least two years; Italy and Norway are both considering legislation that would give inheritance rights 47. Crawley, supra note 28, at 412. Maryland, Massachusetts, New Hampshire, New Mexico, and New York have limited recognition to only express agreements not founded on the meretricious relationship of the parties. Massachusetts, Nebraska, and Wyoming, while not commenting on the recognition of implied agreements, have recognized express agreements. Florida, Minnesota, and North Dakota require unmarried cohabitants to enter into a written agreement in order to be able to share property. 48. 49. 50. 51. Id. Id. at 415. See Bowman, supra note 2, at 774. Id. Garrison, supra note 18, at 818. GARZA MACRO 2/15/2006 11:01 AM 550 NEW ENGLAND LAW REVIEW [Vol. 40:541 to surviving non-marital cohabitants.52 The American Law Institute has recently advocated the adoption of the conscriptive approach as an alternative to the contract approach.53 The ALI principles state that they do not require, as a predicate to finding the existence of a domestic partnership, that the parties had an implied or express agreement, or even that the facts meet the standard requirements of a quantum meruit claim. It instead relies, as do the marriage laws, on a status classification: property claims and support obligations presumptively arise between persons who qualify as domestic partners, as they do between legal spouses, without inquiry into each couple’s particular arrangement, except as the presumption is itself overcome by contract.54 In other words, the conscriptive approach does not require evidence of an agreement entered into by the non-marital cohabitants. The relationship is presumed and the rights and benefits of formal marriage are conferred. Due to the mere presumptions built into the conscriptive approach, there are obvious problems. First of all, cohabitants and married couples represent different demographic profiles.55 This clearly indicates that nonmarital cohabitants have opted out of the marriage relationship, so to automatically include these individuals in the same rubric is dangerous and degrades the institution of marriage (one of the arguments against the recognition of common law marriage). Second, along the same lines, the American Law Institute advocates the adoption of the conscriptive approach for reasons of administrative and judicial efficiency.56 With the presumption of a committed relationship, fraud and evidentiary problems are avoided. The ALI cites to the conscriptive approach as more efficient pointing out that the tests for proving common law marriage “are so hard to determine that the potential for fraud and uncertainty outweighs the benefit of the [common law marriage] doctrine.”57 As Marsha Garrison points out, if the elements of common law marriage are so difficult to prove, “then one must assume that the ‘anything relevant to life as a couple’ approach of the . . . ALI principles would produce even more fraud and uncertainty, 52. 53. 54. 55. 56. 57. Id. at 818-19. Id. at 819. Id. at 837 (quoting A.L.I., PRINCIPLES OF THE LAW ANALYSIS AND RECOMMENDATIONS § 6.03 cmt. b (2002)). See id. at 839-40. See id. at 850. Garrison, supra note 18, at 850. OF FAMILY DISSOLUTION: GARZA MACRO 2/15/2006 11:01 AM 2006] COMMON LAW MARRIAGE 551 with even less offsetting benefit.”58 V. A PROPOSAL TO REVIVE COMMON LAW MARRIAGE In Hewitt v. Hewitt, Victoria Hewitt and Robert Hewitt were together fifteen years and had three children together.59 After Victoria became pregnant with their first child, Robert told her they were man and wife and would “share his life, his future, his earnings and his property.”60 Victoria and Robert held themselves out as husband and wife, even telling their respective parents they were such. That said, there was no formal ceremony and common law marriage had long been abolished in Illinois.61 The parties shared a joint account, Victoria contributed to Robert’s professional reputation, and at the time of the suit, Victoria was working and earning a significant salary. Victoria sought an equal division of the property acquired during their relationship alleging an implied contract.62 The Illinois Supreme Court held that Victoria’s claims were unenforceable rejecting the recognition of contract from the Marvin court.63 The court held that Victoria’s claims violated public policy in that they contradicted the intent of the Illinois Marriage and Dissolution of Marriage Act.64 The court reasoned an award in this case would jeopardize marriage as an institution, revive common law marriage (previously abolished in Illinois in 1905), and contravene public policy. The court also stated that the traditional rule (stated prior to the Marvin trilogy) was that “‘[a]n agreement in consideration of future illicit cohabitation between the plaintiffs is void.’”65 The Hewitt court feared the revival of common law marriage without reason. As stated previously, the concerns which led to the destruction of common law marriage were as follows: the importance of the institution of marriage, interracial marriage and eugenics, effect on third parties, fraudulent claims, and administrative and judicial efficiency of litigating common law marriage claims.66 I will deal with each of these concerns individually. First, the recognition of common law marriage does not diminish the importance of the institution of marriage but bolsters it. The 58. 59. 60. 61. 62. 63. 64. 65. 66. Id. 394 N.E.2d 1204, 1205 (Ill. 1979). Id. See id. at 1210 (describing how the Illinois Legislature abolished common law marriage in 1905). See id. at 1205. See id. at 1210 (citing Marvin v. Marvin, 557 P.2d 106, 123 (Cal. 1976)). Id. Hewitt, 394 N.E.2d at 1208 (quoting Wallace v. Rappley, 103 Ill. 229, 249 (1882)). See Bowman, supra note 2, at 750. GARZA MACRO 2/15/2006 11:01 AM 552 NEW ENGLAND LAW REVIEW [Vol. 40:541 recognition of non-marital cohabitation by contract and the conscriptive approach degrades the importance of the institution of marriage by giving non-marital cohabitants the rights and benefits of marriage with no clear standard. Second, the same concerns of interracial marriage and eugenics do not exist in our present society. Interracial marriages are recognized and eugenics concerns are no longer as prevalent. Third, common law marriage solves the problems for third parties. “[C]ohabitation contracts cannot confer on the contracting parties the right to receive government benefits or to bring claims for matters such as wrongful death or loss of consortium, whereas common law marriages may provide such remedies.”67 The family courts will make the determination for the third parties as to who is married under common law marriage and who is not. The criticisms of common law marriage that still hold strong today are those concerning fraudulent claims and administrative and judicial efficiency. However, the uncertainty in the application of the contract and conscriptive approaches is more likely to cause problems of fraud and administrative and judicial efficiency. Common law marriage provides a clear test and has clear evidentiary requirements. In addition, if we were to destroy legal doctrines based merely on the concern of fraudulent claims and administrative and judicial efficiency, we would be lawless. Administrative and judicial efficiency is a common concern throughout family law and will continue to be. In my opinion, due to the constant criticism of the efficiency of family courts, family law judges are more equipped to deal with the administrative and judicial efficiency problems which may arise. In addition, “[o]ne way to avoid some of the evidentiary problems associated with common law marriage is to adopt a short statute of limitations,” as is done in Texas and Utah.68 “Such a simple expedient would prevent litigants from relying on stale evidence and shaky recollections or waiting to bring a claim until the defendant cohabitant is dead and unable to speak for himself.”69 Changes in society have led to an increase in cohabitation among non-marital couples. This change has created a need for legal doctrine which protects the institution of marriage and protects judicial efficiency while protecting the rights of non-marital couples who see their relationships as an informal marriage. As stated above, recognition through 67. 68. 69. Twila L. Perry, The “Essentials of Marriage”: Reconsidering the Duty of Support and Services, 15 YALE J. L. & FEMINISM 1, 48 (2003) (footnote omitted). Garrison, supra note 18, at 886 (citing UTAH CODE ANN. § 30-1-4.5(2) (2003)); see also TEX. FAM. CODE ANN. § 2.401(b) (Vernon 2005) (stating that an action must be brought within two years following the termination of the relationship). Garrison, supra note 18, at 886. GARZA MACRO 2/15/2006 11:01 AM 2006] COMMON LAW MARRIAGE 553 contract and the conscriptive approach are not extensive and efficient enough. The clear favorable alternative is the recognition of common law marriage by more American jurisdictions. Common law marriage doctrine provides a clear legal test, protecting administrative and judicial efficiency, and looks closely at the intent of the parties to the relationship, protecting each individual. The acceptance of common law marriage throughout the United States is a logical reaction to the current social changes in committed relationships and absence of a sufficient legal doctrine. GARZA MACRO 2/15/2006 11:01 AM 554 NEW ENGLAND LAW REVIEW **** [Vol. 40:541