Common-Law Marriage

Six years ago Claire Ulrich, chorus girl met Charles E. Whitehurst, Baltimore. Md., theatreman, in Manhattan. They went to a hotel. In their room, without witnesses, they read to each other the marriage service from a prayer book, exchanged vows. On page 449 the girl wrote "Claire" and then "Charles." As man and wife they lived together briefly.

Less than a year later Whitehurst died, leaving an estate of $280,000 and no will. Last week the Maryland Court of Appeals decided that this marriage was valid under the laws of New York, that Claire Ulrich was, by common law, Mrs. Whitehurst. As his widow, and over the objections of his mother and brothers, she was entitled to administer and share in his estate.

In 1911, Carlton Curtis, 43, a rich bachelor, was standing at the corner of 54th Street and Broadway, Manhattan, when he saw an automobile bearing down recklessly upon a 17-year-old Negro girl. He snatched her back to safety, found her lithe and vivacious, befriended her. She said her name was Letitia Ernestine Brown. For her he bought a small house in Freeport, L. I., where, she said, he solemnly took her hand, declared himself her husband and her his wife. On her he settled a secret fund of $250,000. About Freeport the two were known as Mr. and Mrs. Harry Brown. Six months of each year Mr. Curtis traveled alone in Europe. Some of the money which he gave her she spent upon a Negro man whose wife threatened court action unless much more money was forthcoming. The triangle crashed and last year Letitia Ernestine Brown sued Mr. Curtis for separation and $250 per week alimony, claiming she was his common-law wife. A Manhattan judge decided their relationship was purely meretricious and illicit, dismissed the suit. Mr. Curtis, declaring his "life was ruined," vanished "to get away from it all."

Between these two cases, as in a twilight zone, lies the treacherous field of common-law marriage. Only the hairline of intent divides such a legal union from the lover-mistress relationship.

States by statutes have decreed who shall be competent to marry, what persons shall be competent to perform marriage ceremonies. These laws are generally considered directory, not mandatory, and a marriage outside the statutory law -i.e., under common or unwritten law -is by implication a legal exception, quite valid if the faith and intent behind the contract are good. Common-law marriages are recognized by the courts of most of the older States east of the Mississippi. Some of the newer States by statute expressly prohibit such unions. No nonstatutory marriage can be positively stamped as valid until its special circumstances have been reviewed by a competent court.

A sound common-law marriage is usually composed of: 1) a man and a woman both legally competent to make the contract (age, absence of other matrimonial obligations, etc.); 2) their actual and mutual agreement to enter the union faithfully, permanently, to the exclusion of all others; 3) their cohabitation; 4) the length of time they live together (varying in practice from one to seven years); 5) their public and social conduct as man and wife. Children by such a union, the existence of a settled home, and the community's recognition, all tend strongly to confirm the relationship as bona-fide.

Into the courts come infinite circumstantial variations of the common-law marriage, most of them confused in intent and darkened by deliberate secrecy. Courts generally hold that the good faith of one party sustains such a union, regardless of the mental reservations of the other. Promiscuity, neglect, cruelty, etc., open the door to legal separation as in any statutory marriage. The secrecy usual in a lover-mistress relationship prevents its becoming a common-law marriage unless time dispels the cloak and establishes public and personal acceptance of the union.

In the Whitehurst case the Maryland court said: "Our conclusion is that they [the circumstances] more than met the requirements of the law [of New York]."

In the Curtis case the New York court said: "The character of their association was indicated by the fact that he visited her not in the way that would characterize their relations as those of man and wife but rather in the way that a lover visits his mistress. . . . That they were known in Freeport as Mr. and Mrs. Brown simply indicates a convenient cloak for illicit relations."