William & Mary Journal of Race, Gender, and Social Justice
Abstract
Common-law marriage is about to go the way of the buggy whip. In 2005, Pennsylvania abolished common-law marriage and other state legislatures are considering following Pennsylvania's lead. Even if common-law marriage is abolished in all states, the problem of unmarried cohabitants seeking property rights arising from their relationships will still challenge the courts. In particular, because most claimants are women, the perception of them as either an "adventuress" or a "virtuous wife" will often determine whether they will attain shared property rights.
This article uses the California experience as an illustration of the evolution of the law from the abolition of common-law marriage in 1895 to the re-evaluation of cohabitant rights in the landmark case of Marvin v. Marvin in 1976. Post-Marvin litigation in both California and Washington state provide a paradigm for dealing with cohabitant property claims in the twenty-first century. In essence, courts have revived common-law marriage in another form today. The emergence of the concept of a "committed intimate relationship" for determining whether a cohabitant can attain shared property rights is instructive. A committed intimate relationship is one that resembles common-law marriage with the additional requirement of intertwined financial affairs. An analysis of common-law marriage cases in the nineteenth century and present-day cohabitant cases shows that the main determinant is still whether the cohabitant is cast in the role of "adventuress" (or adventurer) or has fulfilled the role of "virtuous wife."