Family Law

Court in another state recognizes pre-Obergefell common-law marriage between gay partners

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A Pennsylvania state appellate court on Monday recognized the common-law marriage of a same-sex couple, reversing a trial judge’s finding that at the time in question, it was “legally impossible” for two men to form such a union.

Michael Hunter, who filed the petition, lost his partner Stephen Carter in 2013, after Carter was killed in a motorcycle accident, the Legal Intelligencer reports. Carter died two months before the U.S. Supreme Court released the landmark opinion US v. Windsor, which struck down the federal Defense of Marriage Act.

Carter’s 2016 petition to recognize the marriage was unopposed, but John D. McBride, president judge of the Beaver County Court of Common Pleas, rejected it, on the basis that the state defined marriage as being between a man and a woman prior to 2014.

McBride also took issue with Hunter’s statement that he and Carter entered a common-law marriage before January 2005, the year the doctrine was abolished by the state legislature. Hunter did establish that he and Carter intended to marry when it was legal, the trial court found, but it was not proven that the couple had a common-law marriage. The state does recognize common-law marriages that were entered prior to 2005, PennLive reports.

Hunter and Carter purchased two homes together; had joint bank accounts; named each other executor of their wills; and referred to themselves as being married, as did their families, according to the opinion (PDF) of the Pennsylvania Superior Court, which serves as the state’s appellate division. The couple got engaged in 1996, exchanged rings in February 1997 and celebrated their first wedding anniversary in 1998. They were together until Carter’s death.

“Hunter contends that because these provisions so defining marriage have been declared unconstitutional, they cannot preclude the recognition of his pre-2005 common law marriage to Carter. We agree,” the opinion reads. It also mentions Whitewood v. Wolf (PDF), a 2014 U.S. District Court of Pennsylvania ruling that found the state’s ban on same-sex marriage constitutional, and Obergefell v. Hodges, the 2015 landmark U.S. Supreme Court opinion that found same-sex couples have a constitutional right to marry.

“Together, Windsor, Whitewood, and Obergefell teach that same-sex couples have precisely the same capacity to enter marriage contracts as do opposite-sex couples, and a court today may not rely on the now invalidated provisions of the Marriage Law to deny that constitutional reality,” wrote Judge Geoffrey Moulton. “To deprive Hunter of the opportunity to establish his rights as Carter’s common law spouse, simply because he and Carter are a same-sex couple, would violate both the Equal Protection and Due Process Clauses of the 14th Amendment.”

The appellate court also noted that the lower court was wrong to focus on evidence that Hunter and Carter had spoke about a future “wedding” or “big party.” That “plainly referred to a ceremonial marriage, which they conceded had not yet undertaken and which is fully consistent with an existing common law marriage,” Moulton wrote.

South Carolina has also recently considered the issue of common-law marriage between same-sex couples. In March, a trial judge there found that a same-sex couple who split up after 30 years together had a common-law marriage, and their property should be split accordingly.

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