Common Law Marriage

Oklahoma is one of only a few states to recognize common law marriages. But it’s not as common as it might seem.

Are my lover and I common law spouses after living together for six months?

Not on that basis alone. Common law marriage may have more myths associated with it than perhaps any other area of family law. The fact is, the existence of a common law marriage in Oklahoma is hard to prove. Cohabitation, using the same last name, combining finances, jumping over broomsticks at a party, and other actions said to establish a common-law marriage are just pieces of a much larger puzzle. By themselves, they mean nothing.

How does one prove a common law marriage?

Most marriages are established by following statutory procedures. They are commonly called ceremonial marriages, and the spouses who use the legal procedures are considered officially legally married. Oklahoma is one of only a handful of states (8 at last count) to recognize consensual non-ceremonial marriages. These are called common law marriages. They are formed by the consent of the parties who enter into the marriage, without meeting all the state requirements, such as a ceremony or a license. Common law marriage is a combination of state of mind and particular actions.

Oklahoma case law sets forth a five-part test to establish a common law marriage:

  • An actual and mutual agreement between the spouses to be husband and wife;
  • A permanent relationship;
  • An exclusive relationship;
  • The parties to the marriage must hold themselves out publicly as husband and wife, and;
  • Cohabitation as man and wife (There is actually a split of authority on this particular standard).

The party asserting a common law marriage must prove all of these elements by clear and convincing evidence. Relevant evidence would include joint income tax returns, joint financial accounts, jointly held assets, joint credit, medical records, insurance records, introductions and comments to third parties, hotel receipts, and any number of other forms of documentation. If clear and convincing evidence is missing as to any part of the above referenced test, the claim of a common law marriage will fail. Obviously, each common law marriage case is determined on its own facts.

Common law spouses who want to end their relationship must use the courts to get divorced, just like people who are legally married under state law.


By Tulsa Attorney David Tracy.

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