Kansas does recognize common law marriage, except for individuals under the age of 18. There are certain requirements that must be met in order to form a common law marriage. First, capacity to make an agreement to marriage. Second, holding out to the public as husband and wife. In addition, time is not a factor. And this is the one question I get the most. Usually, I get calls from men and women and they tell me, "we have lived together for 5 years, aren't we common law married. Maybe!! The burden of proving the marraige rests on the party asserting existence of a marriage.
The capacity to to enter into a common law marriage requires the ability to understand, the marital contract, its duties and responsibilities, no existing marriage and the requisite ages, now 18. The present agreement requires a present explicit intent to be married and not an intent to marry in the future. This is the hardest requirement to explain and to prove. The question becomes whether the conduct of the parties in a particular case is sufficiently indicative of a marriage to infer the existence of an agreement. FInally, holding out to the public. This requirement mandates that the parties must publicly and professedly live as husband and wife. There are various types of activities which constitute a holding out to the putlic as husband and wife including, cohabitation, using the same last name, filing joint tax returns, opening joint bank or savings accounts, joint ownership of property, pooling resources, the woman using the man's last name on a driver's license and in daily affairs, designating the other person as spouse and beneficiary on insurance policies, having children and generally gaining a reputation in the community as husband and wife.
Such a case will depend on the facts of the case. Lack of cohabitation may lead to a rejection. Where the parties' acts are inconsistent in their oral characterization of their relationship, the court may find no common law marriage. And where one party consistently denies the existence of an agreement to marry, the court may find no common law marriage.
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