To Create a Common Law Marriage, the Couple May Consent by Agreement or by the Presence of Certain Circumstances: Assuming Marital Responsibilities.

May 14, 2020

Volk v. Vieccchi, 2020 UT App 77 (Filed May 14, 2020). 

To establish a common law marriage, the parties must consent “to the rights and responsibilities that accompany a legally recognized marital relationship.” Hansen, 958 P.2d at 936; see also Whyte, 885 P.2d at 794 (describing the consent required as consent “to be married” and to “assume all marital responsibilities”). While the “best evidence of marital consent is a written agreement . . . by both parties” manifesting the requisite consent, our courts have noted that consent may be established by evidence of certain circumstances in the parties’ relationship, such as “maintenance of joint banking and credit accounts; purchase and joint ownership of property; the [sharing of a spouse’s] surname by the [other spouse] and/or the children of the union; the filing of joint tax returns; speaking of each other in the presence of third parties as being married; and declaring the relationship in documents executed by them while living together, such as deeds, wills, and other formal instruments.” Whyte, 885 P.2d at 794–95; see also Hansen, 958 P.2d at 936. “[C]onsent also may be established by acquiescence,” as evidenced by “objective words and actions” by one spouse that led the other spouse “to believe that [the first spouse] had consented to marriage.” Whyte, 885 P.2d at 794 n.3.

Volk v. Vieccchi, 2020 UT App 77 (Filed May 14, 2020). 

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