Pa Superior Court Upholds Common law Marriage

[happyslug]

In 2003 Commonwealth Court strike down "Common law Marriage". On April 28, 2004 Superior Court declined to follow that ruling and stated Common Law Marriages were still the law in Pennsylvania until either the State Supreme Court or the State Legislature outlaws Common Law Marriage.

Superior Court Opinion (the decision on Common Law Marriage is in footnote 2 of its opinion):
http://www.courts.state.pa.us/OpPosting/Superior/out/a36004_03.pdf

[bleedingheart]

1. funny how we support common law marriage but not gay marriage

I find it ironic that two heterosexual people who are too lazy or "uncommitted" to each other to legally tie the knot are afforded the benefit of common law marriage but yet gay couples who want to marry are denied that right.

[happyslug]

2. Under Pennsylvania Law, Common Law Marriages are LEGAL MARRIAGES.

A common law marriage occurs when two people of the opposite sex who are not married to someone else, announced to each other that they are man and wife. Notice Living together or even having sex, does not MAKE a common law marriage, all that is required is two people announcing to each other that their are married.

The most common form of Common law marriage are the marriages performed by Ship Captains. Ship Captains do NOT have the right to marry people, but they can document two people exchanging vows. Since ships had logs, the Captain would write such exchange of vows in his log, such documentation would be evidence of the exchange of Vows.

Now, the courts have long held that when a couple hold out to the world that they are married that is evidence that such an exchange of vows had taken place. Examples of such actions is when a couple signs their income tax as Married. Signing income tax forms can make a couple married if they file as married (You are signing that you are Husband and wife, and the mere act of signing the Income tax forms can make you married under the common law).

Now the above is "In Presenti" (Spelling?) Common Law Marriage. "In Presenti" translated into English means Roughly "In the Present". Pennsylvania does NOT recognize the second form of Common Law marriage (In Futuro, i.e. "In the Future"). "In Futuro" common law marriage is when a couple promise to each other that they will marry in the future, followed by sexual intercourse. The most famous "In Futuro marriage" involved Edward V and his Brother Richard III. When Edward died, the crown was to go to his son, but Richard found out that before his marriage, Edward had promises another women he would marry her and then had sex with her. That was a valid "in Futuro" Common law Marriage and since Edward was thus married at the time he married his Queen, that subsequent marriage to his Queen was null and void (Making his sons illegitimate and NOT heirs to the Throne). Richard III used this In Futuro common law marriage to make Edward Children not eligible for the Throne and himself the Rightful King of England. Now this was the case with Richard III, most such "In Futuro" Marriages generally made more children legitimate than illegitimate and thus encouraged by the Courts (It also encouraged men to marry early so to avoid having a subsequent marriage made null and void based on a one night stand).

England still permits "in Futuro" Common Law marriage, but Pennsylvania does not. Thus when we talk about Common Law marriages in Pennsylvania we are talking of In Presenti Common law Marriages only.

Common Law Marriages were the product of England's law reflecting a shortage of political and religious leaders able to perform Ceremonial marriages (and a policy of English Courts to make Children Legitimate whenever possible).

Gay Marriage is relatively new movement (Through some such marriages have been made in the past, but rarely did such movements last more than a biblical generation i.e. more than 40 years). Gay Marriages have less affect on raising children of BOTH Spouses. Gay Marriages do not bring into a family additional members of its safety net. As such Gay marriages have NOT survived for any length of time whenever Gay Marriages have occurred.

The primary reason for this is a marriages prior to the advent of the Welfare State of the 1930s, was more a combination of two families entering into an understanding to help each other's family members out than a joining of two people into an exclusive exchange of sex and mutual financial and emotional support.

Prior to the 1930s maintaining relations with one's blood relations was the only social safety net one had. Marriages was a way to connect with another family and its blood relatives for additional safety net. Such relatives wanted to help young families with children for such children would bring benefits to the inner-family safety net. Such Extended Families was the mechanism used by people to survived hard times. Anything that attacked that mechanism was attack not only by the families involved but Society as a whole. Gay Marriages (and homosexual relations as a whole) did NOT promote good extended family relations and as such was opposed by most people (Similarly extra-marital sex was discourage for illegitimate children brought with it extra burden Without the extra support of the father's extended family. Worse may even bring with it increased tension between the mother's and father's families).

Now with the Welfare State the problems brought to the extended family by illegitimate children AND homosexuality has slowly disappeared (With its disappearance most clear in those states with the most comprehensive Welfare system such as Sweden, Norway and France, the least in those states with the weakness Welfare Program, for example the American South).

In a Welfare State, The state takes responsibility for people when they are in trouble (As opposed to that person's blood relatives). This promotes marriage as a mere exchange of Vows between two people to be faithful to each other as opposed to a merger of two extended families. Given this development it is no surprise that Gay Marriage (And out of wedlock children) has become more and more acceptable to more and more people.

The real question is how long will this last? Even in Western Europe the Welfare state is being cut back. Will the States cut it back so much that people will start to rely more and more on their blood relatives for support? If so, the support for Gay Marriage will decline (and the support for legitimate children only will increase). On the other hand, if the Modern Welfare State is extended to areas where it is presently weak (For example the American South) support for Gay Marriage will grow.

My reason for going through this is to explain why Common Law marriages is still the law of Pennsylvania (i.e. a tradition of trying to make children legitimate if possible) AND why the movement for Gay Marriages has proceeded as far as it has (and why it has NOT proceeded in the US as much as it has in Europe).

Gay Marriage is related to the expansion of the Welfare State as the main means of support for people who are in need of financial and emotional support. Prior to the Welfare State, such financial and Emotional Support was provided by the Extended Family. Gay Marriages was disruptive of the Extended Family and as such opposed by those people most dependent on the Extended Family. Gay Marriages is most opposed by those elements of our Society most dependent on the Extended Family (Which is why they is more opposition among working class people than Upper Middle class people to Gay Marriages).

In Short I do not see Common Law marriages disappearing shortly, they are still some advantages for Wives to be married to the father of their Children. Gay Marriages on the other hand will raise and fall with the Welfare state. If we go back to using the extended family as the main support group, gay marriage will die. If the Welfare state survives the present movement to kill it Gay Marriages will be made the law of the land by LEGISLATION sometime in the next 20 years. Gay Marriages will reflect that Marriage is no longer a merger of two extended families but a mere joining of two people into a vow of mutual emotional and financial support.

[bleedingheart]

3. I can understand the need for recognizing common law marriage

in the past especially in those instances where access to civic or religious authorities were limited. Take for instance the pioneering families, a young couple might want to marry but technically be more than 500 miles away from the nearest town where they could legally tie the knot.

In my personal opinion I think that common law marriage is no longer necessary for those reasons. If people want to marry they should marry the "old-fashioned" way and have it recorded legally.

You referenced the fact that prior to the beginning of the welfare state in the US that families depended upon each other for assistance. You are right, but that assistance came at a great price and if anything it could be very demeaning. Take for instance my aunt who had seven children with an abusive husband. She depended upon her family for handouts but was belittled at every turn. When she did qualify for public assistance, as she was one of its first beneficiaries, she was able to retain her sense of dignity while at the same time feeding her children.

[happyslug]

4. You pointed out one of the problems of using family instead of Welfare

Even Christ pointed out the problem (When he pointed out to hypocrites who gave to the poor and made a big show of such giving, as opposed to giving anonymously).

Welfare solved this problem for the Government is more concerned about keeping costs down than in making themselves feel superior. The down side of Welfare is that it is so minimal. Family members can give more and often KNOW what the poor family member needs better than the Government (Provided the family member is close, which is one of the requirements for the family support system to work).

I was once asked why people in Western Pennsylvania have a problem joining groups. I told the questioner it is because of the anti-union activities of the late 1800s and early 1900s. People who join social organizations also are the people who tended to form unions (The Leaders of the Craft Unions that was the heart of the Homestead Strike of 1892 where also members of the various social clubs that existed in Homestead in the 1880s and 1890s). Once the Homestead strike was broken, Carnegie Steel (and increased with t he formation of US Steel In 1901) adopted a policy of hiring people who did not join such organizations, and people who did were the among the first fired whenever a slow down occurred.

This was all part of the Anti-union activities of the early 1900s. Workers in Western Pennsylvania quickly learned the fastest way to get fired was to be a "joiner". The coal companies were even worse than the Steel Companies, watching even what churches you joined (again to avoid hiring people who "joined" and participated in Church functions as opposed to people who were just "members" of a church).

Given this background even family ties were strained. People who were "Joiners" may endanger not only themselves but all the other members of their extended family.

Now such social organizations exists (and are needed to exist) in almost all societies. The Steel and Coal Barons solved this problem by making sure only "their" people (Management and their close allies) where the people forming and joining such social groups. To be asked to join one of these groups was viewed as a "promotion" from mere worker to be part of "Management". Note we are talking about people being payed just pennies more than mere workers, but being treated better.

This had a tendency to break up Extended families (And thus reduce the risk of Unionization) by encouraging snobbery (Which was its intent). Thus your aunt suffered from this problem. Her Relatives had the "privilege" to feel superior to someone. Instead of working together, the above encouraged people to fight each other over nothing.

Now with Unionization of the 1930s the above tended to be reduced, but the long term affects are still with us. My own mother always resented when my father's or her relatives would show up (She had ten children and my father lost his home in 1964 rights after the last one was born). We were the poor relatives and she always thought her relatives were looking down on her. I was to young to get a good picture of the situation but in her case it was the result that she had been the only daughter of a Steel Company Foreman and thus felt charity was her relatives being snobs. I look back and do not see that, I see them trying to help her out as best their could (remember they had families also).

My point here is a lot of feeling against family support was to prevent such family support and support for others to develop into unionizations and Socialism. A whole attitude against support other than from the company developed. Even to the extent of making people hate gifts from relatives. Welfare solved the problem caused by this anti-extended family policy, but it is still alive and well for it takes generations to overcome such "teachings".