A couple living together can call themselves "married" under Utah's common law statute if all the indications tip the scales.
The label doesn't require "clear and convincing" evidence, the Utah Court of Appeals ruled Thursday in a case involving a Provo couple.Michael Loy Hansen raised the issue in 1995 when he tried to divorce his ex-wife, Laura T. Hansen, a second time to settle child custody, support and property distribution issues.
According to court documents, the Hansens were once married, divorced and then later got back together without remarrying. Though at times they held themselves out as a married couple during that latter phase, they did not refer to each other as husband and wife, and their closest friends did not believe they were married, the court record shows.
Also during that time, Michael asked Laura several times to formally remarry him, but she "repeatedly rejected" his proposals.
When the case went to trial, 4th District Judge Anthony Schofield applied what's called a "clear and convincing standard of proof" to the evidence and concluded the Hansens had not acquired a uniform reputation as husband and wife.
Schofield also noted there was "no proof to the legal standard required that Laura consented to the existence of a marital relationship after the previous divorce." He dismissed the case, and Michael Hansen appealed.
At issue was the question of whether a common law marriage is determined by the "clear and convincing" test or simply a "preponderance" of the evidence. Under the preponderance standard, Michael Hansen argued, he and Laura were married.
While the distinction between "clear and convincing" and "preponderance" may seem like semantics, the law treats them as significantly different standards of evidence.
And the three-judge appeals panel says when assessing a common law marriage, the "preponderance" measure applies.
Under Utah law, a marriage that is not "solemnized" is still legal and valid if two consenting parties have cohabitated, mutually assume marital rights and duties, and hold themselves out as and have acquired a uniform and general reputation as husband and wife.
The statute further says, "Evidence of a marriage recognizable under this section may be manifested in any form and may be proved under the same general rules of evidence as facts in other cases."
Writing for the court, Judge Pamela T. Greenwood said preponderance is the standard of proof generally applied in civil proceedings and should apply as well to the common law marriage statute.
While acknowledging that "public policy considerations may weigh in favor of a higher standard than preponderance," the court held that "a marriage under (the statute) need be established only by a preponderance of the evidence."
But that ruling didn't help Michael Hansen, because the judges also found that even under the preponderance test, he hadn't proved a common law marriage existed between him and his ex-wife.
"The fact that the parties' closest friends did not consider the two married, in conjunction with the fact that Mr.Michael Hansen and Mrs.Laura Hansen were not consistent in holding themselves out as married to the rest of the world, negates the establishment - under any standard of proof - of the statutory requirement that the couple "acquired a uniform and general reputation as husband and wife," the court said.
Also, two of the three judges said Laura's rejection of Michael's marriage proposal indicated she didn't want or consent to the rights and responsibilities that accompany a legally recognized marital relationship.
While agreeing with his colleagues on the standard of proof issue, Judge Gregory K. Orme took exception to the finding that a rejection of a marriage proposal demonstrates a lack of consent under the common law marriage statute.
"Quite the contrary," Orme wrote, "I think it is absolutely typical of `just living together' arrangements, whether or not they have ripened into an implied marriage under our statute, that one or both parties have rejected `normal' marriage."
For example, in the Hansens' case, someone might conclude that Laura's rejection of Michael's proposal showed she wanted nothing "marital" to do with him, Orme said.
On the other hand, it might show she already considered herself married under common law "and wished to avoid, as many in this situation do, the involvement of church or state; the hassle and expense of a license, ceremony and reception; or the embarrassment of making such a production of remarrying someone she had already married once and divorced."