Navigating Common Law Marriage in Probate Court
Video Transcribed: Good afternoon everybody. This is Dustin Peterson and I am a lawyer in Oklahoma City. Several times a month, I’ve decided to bring to you the answers to the most commonly heard questions and concerns in my consultations, and I hope that you can use this information to make better decisions in your situation.
Today’s question comes from a nice gentleman who says, “My wife of 50 years has passed away and I’m afraid someone will challenge my ability to inherit her estate because we were both 15 when we were married.” This is certainly a valid concern. In answering this, let’s put aside for the moment the wills and estates question and focus on the marriage aspect since I believe that is the crux of what this gentleman would like to know. So that brings up an interesting distinction in Oklahoma law between marriages that are void and marriages that are voidable.
The distinction is void marriages are usually for egregious violations of public policy, such as incestuous marriage, void. Absolutely void from its inception. If one of the parties to the marriage is married to a third party where there’s no divorce on file, that marriage is void. It can be annulled from its inception. These do not require judicial action, and they can even be attacked by third parties after the death of one of the marriage participants. A voidable marriage, on the other hand, is for a lighter violation of public policy, and in this case, an age violation would be a voidable marriage. In Oklahoma, the age of consent to marry is 18 years of age. Although one can get married as young as 16 years of age with parental consent. Because this gentleman was married to his wife when they were both 15 years of age, that would be a voidable marriage, and if judicial action were taken timely, that marriage could be annulled from its inception.
However, once the impediment is removed, and in this case, once the participants in the marriage turned 18, Oklahoma now considers that to be a common law marriage and it is completely valid. In this case, it still might require some judicial action, maybe in the probate court to determine the common law marriage, but I feel that if the elements are there, he will have no problem in doing so and his concerns can be alleviated to that degree.
If you have questions about void or voidable marriages and need help from a divorce attorney in OKC, call me at my office, at (405) 880-8222 or look me up online at oklahomacitydivorceattorney.pro.