Harry and Flo are now in their late 70's. They have been married before to other people. After their divorces, they moved in together, traveled the world, and hob-knobbed with the rich and famous. Prior to moving in with Harry, Flo worked at his company before their divorces and continues to work with him now. After nearly twenty-five years of living together, Harry started feeling that there
could be someone "better" than Flo waiting out in the world for him. Harry, whose eldest son remembers how his father almost lost his company in the divorce from his mother made sure his father's personal and real properties remained in Harry's name only. Flo's son, the lawyer, advised his mother that she and Harry were living in a jurisdiction that recognizes common law marriages. The fight is on! Flo wants everything; Harry is adamant that she gets nothing because they were never married. Flo has been referred to your supervising attorney's law firm by her son, the lawyer.
What are Flo's chances of taking everything or at least one half of Harry's dreams?
Students should know what legal reasons couples may opt for common law arrangements such as convenience, lack of expense, and a desire to minimize government or religious. In addition, common law marriage may provide a vehicle for protecting economically, socially, and educationally vulnerable women enabling them to legitimatize their children and gain access to both marital rights and vital social services. These benefits, however, have also lead to abuses such as the claim of benefits after the death of a party, the arguments that common law marriages promote immoral behavior, and are not usually favored even in jurisdictions where they are authorized.
Couples that live in a jurisdiction that recognizes common marriages:
1 ) must have the legal capacity to marry
2 ) must intend and simultaneously agree to be married (either expressed or inferred depending on the jurisdiction )
3 ) must cohabit (consummation may not be required)
4 ) must hold themselves out to the public as husband and wife
Most states will recognize a common law marriage that is valid in the state where it was entered. When the existence of a common marriage is asserted, it is important to check the states that presently permit such marriage and under what circumstances. Additionally, it is important to find out whether the alleged marriage was entered into in a state that no longer recognizes common law marriage but formerly did and did so at the time the parties resided in or spent a considerable period of time in that state.
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