MEMORANDUM
TO:
Partner Daniel B. Weddle
FROM:
Summer Associate
Workshop A-1-A
DATE:
October 1, 2011
RE:
Client William Partridge
Validity of Kansas Common Law Marriage
_______________________________________________________________________
INTRODUCTION
On June 12, 2011, Ellen Dorring, also known as Ellen Partridge, passed away.
Because William Partridge believes he may be entitled to all or part of Ellen’s estate as
her common law husband, he has asked the firm to determine whether he and Ellen had a
valid common law marriage under Kansas law.
William would probably succeed in proving that, under Kansas law, a valid
common law marriage did exist between Ellen and him at the time of her death. Both
parties had the legal, physical and mental capacity to enter into a marriage contract. The
parties had a present marriage agreement, and the parties held out one another as husband
and wife to the public.
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STATEMENT OF FACTS
During college, Ellen became addicted to heroin. Her mother stated that Ellen was
constantly “high” and was always getting in trouble with the police for the antics she
pulled when she was taking heroin. During her first year of college, Ellen once beat up a
person; and, immediately after, she told police she did not know that she had hit anyone
and did not know that her hitting a person would cause injury. Her mother claimed that
Ellen continued her heroin use throughout her alleged common law marriage to William
until her death in 2011.
Ellen and William met in May 2004 and moved in together in February 2005.
Ellen’s mother believes that the couple moved in together to save money on living
expenses. Nonetheless, Ellen and William shared all the household duties as well as the
master bedroom. The couple never obtained a marriage license or exchanged vows.
However, while on a trip to New Orleans, William gave Ellen his grandmother’s antique
emerald ring, which Ellen wore on her left-hand ring finger. On that occasion, the couple
decided that they were married. During that trip, the couple registered as Mr. and Mrs.
William Partridge. The couple told all of their friends the trip was for their honeymoon,
and William told his parents that he and Ellen were married.
Upon their return from their trip, the couple obtained a farm loan, which they
signed as Mr. and Mrs. William Partridge. The following year, the couple applied for
another loan. When asked to supply copies of their federal income tax returns, they
presented the loan officer with individual tax returns. Both had filed separate income tax
returns, and Ellen had filed her tax return under the name “Ellen Dorring.” Additionally,
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the loan officer noted that Ellen maintained a separate savings account under the name
“Ellen Dorring,” which she maintained under that name until her death.
In October 2006, Helen Anderson, a county census worker, spoke with Ellen while
taking the annual census for the county. Ellen introduced herself as “Ellen Dorring” and
showed Ms. Anderson three forms of identification. Ellen’s driver’s license and Visa
card both listed her name as “Ellen Dorring,” while her library card listed her name as
“Ellen Partridge.”
William Partridge now claims he is entitled to all or part of Ellen’s estate as her
husband on the theory that he and Ellen had a valid Kansas common law marriage.
DISCUSSION
William Partridge will probably successfully prove that a common law marriage
did exist between Ellen and him at the time of her death. Both William and Ellen had the
capacity to marry, notwithstanding her heroin use. In addition, there is substantial
evidence of a present agreement to marry, an agreement that lasted until Ellen’s death.
Finally, there is substantial evidence that they consistently held themselves out to the
public as husband and wife.
A common law marriage is valid in Kansas if it meets three requisite elements: (1)
both parties have the capacity to marry, (2) a present marriage agreement exists between
the two parties, and (3) the parties hold out each other as husband and wife to the general
public. Antonopoulos v. Antonopoulos, 993 P.2d 637, 647 (Kan. 1999); Eaton v.
Johnson, 681 P.2d 606, 608 (Kans. 1984). The person asserting the existence of a valid
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common law marriage has the burden of proof, and this burden must be met with
substantial competent evidence. Antonopoulos, 993 P.2d at 647. In order for William
Partridge to prove that a valid common law marriage existed between Ellen and him, he
must present substantial competent evidence to support all three elements of a valid
common law marriage in Kansas.
I.
Capacity of the Parties to Marry
Both William and Ellen had the capacity to enter into a marriage contract,
notwithstanding Ellen’s drug abuse. Under Kansas law, a person is presumed to have the
mental and physical capacity to marry unless proven otherwise; and so long as the party
is not married to another spouse and is of sufficient age, an alleged marriage will be
deemed valid, given sufficient evidence of existence. “Capacity to marry relates to
whether or not a legal impediment exists to entering into a marriage contract,” In re
Hendrickson, 805 P.2d 20, 21 (Kan. 1991) (citing 52 Am. Jur. 2d Marriage § 14 (1991)),
and would include mental and physical capacity, the absence of a another spouse, and
sufficient age to marry. Id. A person must be eighteen years old to enter a valid common
law marriage in Kansas. Kan. Stat. Ann. § 23-101 (2005).
A person has the mental capacity to marry if he or she understands the nature of
the contract and the duties and responsibilities that the contract creates. Id. at 23 (citing
Johnson v. Johnson, 104 N.W.2d 8 (N.D. 1960)). “The test of mental capacity to contract
is whether the person possesses sufficient mind to understand in a reasonable manner the
nature and effect of the act in which he is engaged.” DeBauge Bros., Inc. v. Whittsitt,
512 P.2d 487, 490 (Kan. 1973). If the mind has been “so far affected by disease or the
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decay of his faculties as to render him incapable of knowing the effect of the act he is
about to perform, and of intelligently consenting to the marriage ceremony, then there is
an incapacity on his part to contract.” Hendrickson, 805 P.2d at 23 (quoting Baughman
v. Baughman, 4 P.2d 1003 (Kan. 1994)).
In Kansas, a person is presumed sane and competent to enter into a marriage
contract until proven otherwise by the party alleging incapacity. Hendrickson, 805 P.2d
at 24. In Hendrickson, for example, the Kansas Supreme Court held that Hendrickson
had the capacity to marry even though Hendrickson was hospitalized, on oxygen, looked
ill, and told his relatives that he did not realize what was going on. Id. at 22, 25. The
contesting party in Hendrickson did not overcome the presumption of sanity with
sufficient evidence to prove that Hendrickson was incapable of entering into a marriage
contract because there was “little, if any, truly impartial evidence on the question of Mr.
Hendrickson's legal capacity.” Id. at 24. The lack of impartial testimony from nurses or
doctors, who should have been readily available considering Hendrickson’s
hospitalization, compelled the court to defer to the legal presumption of sanity. Id.
Additionally, the Kansas Supreme Court has held that even intoxication caused by a
whiskey highball prior to the signing of a contract did not render a person mentally
incapacitated for purposes of entering into a contract. Crawford v. Crawford, 271 P.2d
240, 243 (Kan. 1954).
Ellen will likely be presumed to have been mentally capable of entering into a
marital contract with William because her heroin use will not defeat the presumption of
her sanity and competence. Although heroin use can affect mental capacity, no evidence
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exists that proves Ellen was under the influence of drugs when she entered into the
alleged marriage contact with William.
Even if such evidence did exist, the issue would be whether Ellen was capable of
knowing the effect of the marital agreement and if she intelligently consented to that
agreement. Other than Ellen, William was the only individual present at the time of the
marital agreement, and he does not mention anything about Ellen’s being under the
influence of drugs at the time.
As Ellen’s family has no evidence regarding Ellen’s
mental capacity at the time of the marital contract, the court will defer to the presumption
that Ellen understood the nature of the marriage contract and the resulting duties and
responsibilities and therefore had the requisite mental capacity to enter into the marriage
contract.
No dispute exists concerning any other aspect of either Ellen’s or William’s
capacity to marry. Neither Ellen nor William was married to anyone else, and each was
over eighteen years of age and therefore of sufficient age to marry. Therefore, William
will be able to prove by substantial competent evidence that both he and Ellen had the
requisite capacity to enter into a common law marriage.
II.
Present Marriage Agreement to Marry
A present agreement to marry existed between Ellen and William because their
actions demonstrated a mutual consent to the marriage and an intent to be presently
married at the time of those actions rather than at some time in the future. While a present
marriage agreement does not need to be in a particular form, “it is essential that each
have a mutual present consent to the marriage.” Kansas v. Johnson, 532 P.2d 1325, 1329
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(Kan. 1975), overruled on other grounds, State v. Lee, 977 P.2d 263 (Kan. 1999).
Marriages are generally solemnized by a religious ceremony; however, “no religious rite
or ceremony is prescribed… and no religious qualification is required.” Kansas v.
Walker, 13 P. 279, 307 (Kan. 1887). Rather, the parties are required by statute to have
mutual consent to the marriage. Kan. Stat. Ann. § 23-101 (2000). The intent of the
parties must be to be presently married rather than to marry sometime in the future. Id.
The parties’ words and actions may provide evidence of their intent. For example,
a private ring-exchanging ceremony that was witnessed by two others has been held to be
a present marriage agreement. Antonopoulos, 993 P.2d at 647. However, when a man
asked his girlfriend if she was his “old lady” and the woman replied, “[I]f you want to put
it that way,” that exchange of words was not sufficient to support a present marriage
agreement because the words did not clearly suggest a marriage. Driscoll v. Driscoll, 552
P.2d 629, 631-32 (Kan. 1976). Though she wore a set of wedding rings, the fact that the
wedding rings were neither purchased for nor presented during the exchange of words
that occurred between the couple and the fact that she admittedly wore them primarily to
avoid embarrassment during her pregnancy further suggested that no marriage was
intended. Id. at 631.
In contrast, when William gave Ellen the ring, the couple made a serious
commitment to one another that they were, from that moment on, married. Although no
others witnessed their exchange of rings, the parties nevertheless mutually agreed that
they were married at that moment. They agreed to be married from that point forward,
rather than to marry at some later date.
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While William’s testimony is the only account regarding this exchange, his
testimony is corroborated by Ellen’s always wearing the ring on her left-hand ring finger.
Although the wearing of a ring was not sufficient to establish an intent to be presently
married in Driscoll, William’s case differs because his and Ellen’s words and actions
demonstrated an explicit intent to be considered married; in contrast, the couple in
Driscoll used ambiguous slang and nonchalantly agreed to be viewed as married. Where
William and Ellen agreed to be married, the couple in Driscoll merely exchanged a term
of endearment, “my old lady,” rather than entering an honest and serious agreement to be
married. Id. at 632. This uncontroverted evidence of Ellen and William’s present
marriage agreement should be sufficient to support the second requisite element of a
valid common law marriage in Kansas.
III.
Holding One Another Out to the Public as Husband and Wife
Ellen and William held themselves out to the public as husband and wife and
thereby fulfilled the third requisite element of a valid common law marriage in Kansas.
In order to have a valid common law marriage, the parties not only must have the
capacity to marry and a present marriage agreement; the parties must also hold one
another out as husband and wife to the public. Chandler v. Central Oil Corp., 853 P.2d
649, 651 (Kan. 1993).
A couple’s holding one another out as married must be consistent over time. For
example, in Hineman v. Hineman, the court held that a common law marriage did not
exist because highly conflicting evidence existed regarding whether the decedent had
been held out as married. 297 P.2d 149, 150 (Kan. 1956). The couple borrowed money
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from the bank as a married couple and even filed a joint tax return. Id. The couple also
shared an automobile and trailer. Both the automobile and the trailer, however, were
owned in the decedent’s maiden name. Id. Moreover, the man told the undertaker that
the decedent was single and that the couple had planned to get married. Id. Because of
the “highly conflicting evidence,” the court was forced to hold that a valid common law
marriage did not exist. Id. Similarly, in Eaton v. Johnson, 681 P.2d 606, 607-08 (Kan.
1984), the court found insufficient evidence of a common law marriage because the
woman continually denied that she was married, the couple filed individual tax returns as
unmarried or single, and the man told his friends that he planned to marry another
woman. Id.
In contrast, substantial evidence exists that William and Ellen nearly always
represented themselves to the general public as husband and wife.
By public portraying
themselves as husband and wife to their friends and to William’s parents – as well as to a
hotel, a bank, and a library – they consistently held themselves out publicly as married.
Their behavior suggests that they considered themselves married to each other, and they
behaved consistently with that belief. Because no evidence exists that either William or
Ellen was married to or even involved with anyone else during the course of the couple’s
life together, their marriage will likely be held to be valid.
Evidence does exist, of course, that the couple occasionally held themselves out as
unmarried. Their filing individual income tax returns as unmarried or single even after
their marriage agreement; maintaining a separate personal savings account, driver’s
license, and charge card under Ellen’s maiden name; and Ellen’s introducing herself as
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“Ellen Dorring” to the county census worker all suggest that Ellen did not want to be held
out as William’s wife. The evidence, however, is not so incompatible with marriage as to
outweigh the other ways in which they consistently portrayed themselves as husband and
wife. Married people often maintain separate savings accounts; and Ellen may simply
not have taken the time to change her name on the savings account, her driver’s license,
or her charge card. In fact, a married woman’s using her maiden name rather than her
married name is hardly unusual in this day and age. Moreover, no evidence exists that
Ellen ever denied being married to William.
In light of all the evidence, the court will likely find that Ellen and William
sufficiently held one another out as husband and wife to establish a common law
marriage. By telling friends, parents, and strangers that they were husband and wife and
conducting important business affairs as husband and wife, they convincingly and, for the
most part, consistently held themselves out as a married couple. In fact, on the day of
Ellen’s death, the hospital called William and notified him that his wife had passed away.
Even if the court concludes that there is some conflicting evidence as to the couple’s
holding out of one another as husband and wife, the evidence suggesting they were not
married is not so strong as it was in Hineman. The court will likely find that, taken
together, the facts provide substantial competent evidence of a common law marriage.
CONCLUSION
Ellen and William had a valid common law marriage. Both parties had the legal,
physical and mental capacity to enter into a marriage contract. The parties had a present
marriage agreement, and the parties held out one another as husband and wife to the
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public. Therefore, William would probably succeed in proving that a valid common law
marriage did exist between Ellen and him at the time of her death.
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