Lead Opinion
Opinion by
Appellant contends that the court below erred in sustaining a demurrer to the evidence of the existence of a common law marriage, which would entitle her to support.
Maria J. McDermott, appellant, and John R. McDer-mott, appellee, were married in Mgladbach, Germany, on October 26, 1948. Two sons were born of the marriage before the parties were divorced in Germany on October 11, 1966. Appellant and her two sons moved to Harrisburg shortly after the divorce. She and her husband continued to correspond. She testified that her husband had written: “he don’t care if people know we’re divorced or not divorced; he’s still my husband, and you are still my wife.” In June of 1967, Mr. McDermott arrived at appellant’s residence and announced his arrival with the words: “Here I am. You want to be my wife again?” Appellant responded, “Yes.”
Additionally, appellant testified that she was named as beneficiary on an army insurance policy and on a pension plan with Mr. McDermott’s employer. After the parties separated in September, 1972, Mr. McDermott continued to pay support under an informal support agreement, which was discontinued two years later when Mr. McDermott was fired from his job.
On May 10, 1974, this action was commenced for support. After appellant had presented her evidence of a common law marriage, the court sustained a demurrer to the evidence and testimony was confined to Mr. Mc-Dermott’s liability for support of his minor child. The court ordered him to pay $50.00 per week in support for the child but allowed nothing for appellant. This appeal followed.
It is settled that marriage is a civil contract, and does not require any particular form of solemnization before an officer of a church or of the state. Bisbing’s Estate,
The tenuous distinction verba de praesenti and verba de futuro has long been the subject of criticism.
In Comly’s Estate,
In Neafie’s Estate, 12 Dist. 749 (1903), cited with approval in Wagner Estate,
The Court in Ward’s Estate,
The Court in Brown v. Nolen,
Flora C. Seifert testified that her marriage to William H. Seifert was based on an alleged conversation between William, his mother and herself. William supposedly said: “Flora and me are going to be married.” Then taking Flora’s hand, he continued, “Now, Flora, I am going to take you for my lawful wife forever, as long as the both of us live.” And she replied, “Well, now, William, I am going to marry you and take you for my lawful husband as long as we both live.” This testimony, taken with the evidence of immediate cohabitation and of reputation were held sufficient to establish a valid marriage. Seifert’s Estate,
The Court in Caddy v. Johnstown Fireman’s Relief Association,
It is true that the courts have in the past looked upon common law marriage with a somewhat jaundiced eye. “The law of Pennsylvania recognizes common law marriages. But they are a fruitful source of perjury and fraud, and, in consequence, they are to be tolerated, not encouraged; the professed contract should be examined with great scrutiny, and it should plainly appear that there was an actual agreement entered into, then and there, to form the legal relation of husband and wife.. ..” Baker v. Mitchell,
Furthermore, the instant case may properly be distinguished from those cases in which the alleged marriage is a first marriage between the parties rather than a remarriage. Commenting on this difference, our Supreme Court said: “These doctrines [referring to the judicial hostility to claims predicated on common law marriage] are familiar enough. We are, however, not dealing with a first marriage but with a remarriage following divorce after twenty years of wedlock. In such case we think that the law’s role of mere toleration of the common law relationship should be reversed and the status of remarriage favored, even if acquired with common law informality. If the law allows a spouse, in the generous amount of nine reasons, to establish by divorce that the marriage was a mistake, it should be at least equally eager to let both spouses discover that their divorce was also a mistake. We regard it better to encourage remarriage than to leave such parties under judicial edict that they were
A review of the testimony in the instant case reveals that appellant and her former husband intended to establish the legal relation of husband and wife when he returned to her in June of 1967. The parties discussed this in letters exchanged prior to his return. Mr. Mc-Dermott’s words, when considered in the context of the situation, express a clear present intent to resume the marriage. Their subsequent cohabitation and holding out to others is corroborative of this intent. The fact that certain policies and pension plans were continued or established with appellant as beneficiary points to this conclusion. Mr. McDermott and appellant filed joint tax returns claiming the status of marriage and signed sworn statements to this effect. Appellant’s son and neighbor corroborated the fact of the marriage by testimony as to the parties’ reputation in the community — a reputation which Mr. McDermott fostered. To permit Mr. McDermott to escape the responsibilities of support simply because appellant, a woman whose native tongue was not English and whose lack of familiarity with the
The order of the lower court is reversed, and the case is remanded for proceedings consistent with this opinion.
Notes
. Appellant testified on cross-examination that Mr. McDer-mott said: “Here I am, your husband. Will you be my wife?” She also testified that she was not sure exactly what words were spoken, but that the words were to this effect. Steven Albert McDermott testified that he was present when his father arrived at his mother’s home and that there was a big “love scene.” He could not testify as to' the precise words spoken. As it will be seen, this relatively minor discrepancy is not important.
. See Freedman, Law of Marriage and Divorce in Pennsylvania §52: “The eminent legal historians, Pollock and Maitland, justly criticize the distinction between the present and future tenses: ‘The scheme at which . . . [the canonists] thus arrived was certainly no masterpiece of human wisdom. Of all people in the world lovers are the least likely to distinguish between the present and the future tenses . . . The union which had existed for many years between man and woman might with fatal ease be proved adulterous and there would be hard swearing on both sides about “I will” and “I do.” ’ Martin Luther earlier protested: ‘They have played a regular fool’s game with their verbis de praesenti vel futuro. With it they have torn apart many marriages which were valid according to their own law, and those which were not valid they have bound up . . . Indeed I should not myself know how a churl... would or could betroth himself de futuro in the German tongue; for the way one betroths himself means per verba de praesenti, and surely a clown knows nothing of such a nimble grammar as the difference between aecipio and accipiam; therefore he proceeds according to our way of speech and says: “I will have thee,” “I will take thee,” “thou shalt be mine.” Thereupon “yes” is said at once without more ado.’ ” (footnotes omitted)
. In Murdock’s Estate,
Similarly, in Tholey’s Appeal,
In Grimm’s Estate,
In Craig’s Estate,
In Baker v. Mitchell,
Likewise, in Nikitka’s Estate,
In short, the consistent theme of these cases appears to be an effort on the part of the Courts to distinguish meretricious relationships from valid common law marriages on the basis of the presumed intent of the parties inferred from their conduct, words and representations to others.
Dissenting Opinion
Dissenting Opinion by
This case presents the unusual issue of whether a valid common law marriage was entered into by the parties who had previously been married and divorced.
Maria J. McDermott, appellant, and John R. Mc-Dermott were married in Mgladbach, Germany, on October 26, 1948. Two sons were born of the marriage before it was ended by divorce in Germany on October 11, 1966. Soon thereafter, appellant and her two sons took up a residence in Harrisburg, Pennsylvania. Appellant and Mr. McDermott continued to correspond and in June of 1967, Mr. McDermott arrived at appellant’s home. According to appellant, after he entered her residence he stated: “Here I am. You want to be my wife again?” Appellant responded: “Yes.” Notes of Testimony at 11.
Appellant testified that after that moment they lived together as husband and wife for almost five years. Appellant further testified that for several years they filed joint tax returns and that her husband had told her that she was a beneficiary under a pension plan. On cross-examination appellant again testified as to what Mr. McDermott said when he arrived at the house: “Here I am, your husband. Will you be my wife?” According to appellant, she replied: “Yes.” Notes of Testimony at 24.
A neighbor testified that appellant had introduced her to Mr. McDermott as her husband and that everyone in the neighborhood thought the parties were husband and wife. However, the neighbor admitted that she never heard Mr. McDermott introduce appellant as his wife. Notes of Testimony at 35-37.
In September of 1972, Mr McDermott left the house but continued to support appellant and one son who was living with his mother. Two years later, however, Mr. McDermott’s employment was terminated and the amount given to appellant and her son for support decreased substantially. Appellant accordingly commenced the present support action. After the taking of testimony had been completed, the lower court found as a fact that no common law marriage existed because the words allegedly uttered by the parties were not in the present tense as required to form a common law marriage. No support was granted to appellant although an order of $50.00 a week was entered for the son who was still living with his mother. Appellant now argues that the evidence was sufficient to establish a common law marriage. I disagree with the conclusion of the majority and would affirm the order of the court below.
“A common law marriage is established by words in the present tense, uttered with the view and for the purpose of establishing the relation of husband and wife.” Gower Estate,
The thrust of appellant’s case is that she and Mr. McDermott entered into a contract of remarriage upon his arrival at her residence. However, the words allegedly used were: “You want to be my wife again?” or “Will you be my wife?” I agree with the lower court that these words do not demonstrate a present intent between the parties to form.the union of marriage. Instead they indicate the willingness of appellant to become Mr. Mc-Dermott’s wife at some future time rather than right at that moment.
In Pierce v. Pierce,
I am aware of the cases cited by appellant which favor the status of remarriage, even if acquired by common law informality. See Wagner Estate,
In short, appellant attempted to prove a remarriage by words exchanged between the parties in June of 1967. Appellant’s case must rise or fall on whether an actual marriage was at that time created.
I would affirm the order of the lower court.
Van der VooRT, J., joins in this dissenting opinion.
. I would also like to add that in my opinion the evidence presented by appellant was not sufficient to prove reputation of marriage. That evidence consisted of the statements of appellant about income tax returns and insurance policies, the testimony of appellant’s son, and the testimony of one neighbor who admitted that she never heard the husband refer to appellant as his wife. “ ‘The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof of reputation for such purpose must be general and not confined to a few persons in the immediate neighborhood, as the relationship may be established merely for the purpose of deceiving others.’ ” Nikitka’s Estate,