JURIST Guest Columnist Julie R. Colton of the University of Pittsburgh School of Law discusses how the newfound legalization of same-sex marriage can raise more questions than it answers, particularly with respect to common law marriage…

Even though the U.S. Supreme Court ruled in Obergefell that bans on same-sex marriage are unconstitutional back in 2015, important issues surrounding same-sex marriage are still unsettled. For example, the Supreme Court had to address the fact that lesbian married parents were not receiving the same parentage recognition as opposite-sex married parents in Arkansas. A federal Court of Appeals upheld a North Carolina law that would allow magistrate judges to refuse to perform same-sex marriages.

As marriage rights continue to settle in, their effects on same-sex divorce are beginning to surface. Determining the date of marriage is a crucial element for divorce. The date of marriage helps set the marital estate to be divided and is considered when determining alimony. A date of marriage may help determine parentage, which could be game changing in custody proceedings. Determining a date of marriage is rarely disputed because a marriage certificate usually exists and common law marriage was rescinded in 2005. But in a same-sex marriage, what is the date of marriage?

Is it the day that the Obergefell opinion was issued? Is it the day that it was legalized in the couple’s home state? Is it the day the couple married, even if that’s before same-sex marriage was legal? Is it the date that a civil union was entered into? What about common law marriage? Could same-sex couples have been common law married in a state that had a same-sex marriage ban while the ban was in effect?

In Pennsylvania, the Superior Court took up that question in In re: Estate of Stephen Carter. Mr. Carter died in 2013 and his partner, Mr. Hunter, petitioned for a declaration of marriage in 2016 as part of processing the estate. Same-sex marriage did not become legal in Pennsylvania until 2014, while common law marriage had been outlawed since 2005. How was Mr. Hunter asking the court to determine that he and Mr. Carter had been married? He wanted the court to recognize his relationship as a same-sex common law marriage.

First, let’s dispel a myth: common law marriage is not established by living together for seven years. Each state that recognizes common law marriage has a definition of common law marriage that has to be met. In Pennsylvania, there are two tests: one test for if both parties are living, and a second test in the case where one of the potential spouses has died. There is one test for divorce or marriage cases where both parties are alive and therefore available to testify. There is a second test in estate cases where the only part available to confirm or deny the allegation of a common law marriage is not available because of death. In the Carter case, the court applied the estate test where there is a rebuttable presumption of a common law marriage if evidence shows cohabitation and reputation of marriage. Had this been a divorce case where both parties were available to testify, Mr. Carter and Mr. Hunter would have had to prove a present tense exchange of vows of marriage.

Mr. Hunter was able to meet all the requirements of cohabitation and reputation to prove the parties had been living as spouses. That leaves one last hurdle, marriage was banned at the time the men exchanged rings and it was not legalized until after the unfortunate death of Mr. Carter. The Pennsylvania and federal bans on same sex marriage had both been ruled unconstitutional. When a statute is ruled on constitutional it is as if it never existed in the first place, unless the court that determines the unconstitutionality specifically states otherwise. So, the Pennsylvania Superior Court determined that Mr. Carter and Mr. Hunter were married at the time of Mr. Hunter’s death.

Even post-mortem determinations of marriage are important, which was evidenced by the many people involved in the Obergefell case.

Also, the recognition of common law marriage in divorces will increase the time period where the marital estate accumulated. It may also increase the number of same-sex marriages.

The reconciliation of common law marriage also affects federal benefits. A couple must be married at least ten years to be eligible for the spousal benefit in social security after divorce. It also affects the income tax filing status and the percent of inheritance tax assessed at the time of death. A common law marriage may also play a role in the outcome of personal injury cases, opening up more cases to a loss of consortium claim.

Common law marriage also pops up in the employment law realm. Is a partner a spouse when the pension pays out? Is the person a spouse for the purpose of worker’s compensation death benefits?

The recognition of common law same sex marriage also benefits children. It will protect the inheritance rights of children of same-sex couples. It will protect the parent-child relations for children of same-sex couples whose parents utilize the court system for custody. It may also prevent third parties from claiming parentage based on the legal fictions of parentage in the state of Pennsylvania.

If the ban on same-sex marriage is unconstitutional, and pre-2005 same-sex common law marriage exist in Pennsylvania, how far back should we look? At what point should employers be able to breathe easy and no longer be subject to lawsuits about spousal benefits? How long should the government be free from requests to adjust past income tax or inheritance tax returns? Does the statute of limitations run from the date of the incident? Or does it run from the date where people knew or should have known that they were legally married?

Can a civil union be seen as evidence of a common law marriage? Once again, in Pennsylvania, the Superior Court has allowed a civil union to be considered a marriage when the state in which the civil union was performed specifically stated the purpose of civil unions was to grant rights identical to the rights available to opposite-sex couples through marriage. Since Vermont was trying to create marriage equality, Pennsylvania recognizes Vermont civil unions as marriages. This may provide some clarity about a date of marriage if the couple had earlier entered in to a civil union. If the civil union was not legislatively converted to a marriage, could it be a common law marriage? Is a civil union a marriage? Did it grant the same rights? Clearly PA is allowing some civil unions to be considered marriages for the purpose of divorce, but left the door open for this matter to be challenged when the state of ceremony has different laws.

The intersection of same-sex marriage and common law marriage will have many benefits for couples. It will also create some sticky situations.

Julie R. Colton is a partner at Voker & Colton, LLC, where she focuses her practice in family law, as well as an adjunct faculty member at the University of Pittsburgh where she teaches family law.

Suggest citation: Julie R. Colton, Determining a Wedding Date: Retroactive Recognition of Same-Sex Common Law Marriages post-ObergefellJURIST &#8212 Academic Commentary, Sept. 18, 2017, http://jurist.org/academic/2017/09/julie-colton-obergefell-common-law.php.