It is, quite simply, commonsense marriage.

Commonsense marriage is rooted in common law, i.e., an unwritten law grounded in those customs and practices of the people of such long-standing practice that they were said to be in the nature of law, having a certain “force” among the people even though not put in the form of propositional written statements enacted by any legislative body.

William Blackstone, who, along with his Commentaries on the Laws of England, has often been cited by the U.S. Supreme Court, said this about those “customs” that form the common law: “[T]he goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law.”

A marital contract has historically been viewed within the common law as essentially a type of private civil contract much like other private contracts into which two parties may enter, such as employment contacts or lease agreements, and the parties may do so without the legislature having to enact a law “giving” them the right or authority to enter into private contracts. The nature of the relations between the parties and their intent determined the “name” that was given to the contract.

In other words, a man and woman could enter into any of those three types of contracts—employment, lease, or marital—but if the intention was to pay a sum of money for work to be done, it would be considered a type of employment agreement even if the words “marital contract” or “lease agreement” appeared across the top of the contract.

It is this understanding of the marital relation that is found in Article XI, section 18 of Tennessee’s Constitution: “The historical institution and legal contract solemnizing the relationship between one man and one woman shall be the only legally recognized marital contract in this state.”

As with any other contract, the parties to a marital contract must be able to contract. In the context of marriage, this generally means that:

• Both parties freely consent to a contract of marriage,
• Both parties are of legal age to enter into a contract of marriage, and
• Neither party is under a disability that prevents him or her from entering into a valid marriage–e.g., they must both be of sound mind and not currently a party to another marital contract.

A marital contract differs from statutory marriage in that:

• The man and woman do not have to get the state’s permission in order to marry,
• No minister or other state-designated official must officiate or solemnize the marriage (and, thus, that person is no longer at risk of being required to officiate a marriage to which he or she has a religious objection), and
• The parties must hold themselves out to the world as husband and wife. (This is not a requirement of statutory marriage, which substitutes the existence of the license for any public evidences of the marriage.)

In other words, the parties must intend their relationship to be, and to be regarded by others, as a legally valid marital relationship. For that reason, cohabitation alone does not create a common law marriage.

 

While the Marital Contract Recording Act does not establish any state-required “formula” for entering into a common law marriage, just as is the case under Tennessee’s licensing statute (T.C.A. § 36-3-302), the act does allow for a document to be filed in the office of the county clerk where either the man or woman resides at the time of the marital contract.

The certificate must set forth certain things listed in the statute, but the essential requirement is that the parties to the marital contract state that it is their intention to be married and hold themselves out to the public as married.

So, for example, the typical “church wedding” could suffice for the purpose of creating evidence of a legally recognizable marriage, so long as the parties thereafter live as a married couple, even if no document is ever filed with a clerk. Those not affiliated with a church or other house of worship could “exchange their vows” and demonstrate their intention to enter into a marital relation under the circumstances of their own choosing. No clergy is required.

The filed document does not create the marital contract or relation.

Yes. In Meister v. Moore (1877), the U.S. Supreme Court ruled that common law marriage could be valid despite a state statutory provision for licensed marriage. States are permitted to have both a statutory licensed marriage and a common law marriage. In fact, in that case, the U.S. Supreme Court said that the right to marry was not conferred by the statutory enactments regulating marriage, but was a right existing at common law.

Yes. The federal Department of Revenue and Department of Labor both recognize common law marriage.

It doesn’t have to, but the marriage licensing law, as enacted, may violate the U.S. Constitution, depending on how one were to interpret and apply the holdings in the Obergefell opinion.

But regardless of how Obergefell is interpreted, the county clerk, by administering those statutes so as to allow two people of the same sex to get a license, and the governor and state treasurer, by recognizing those licenses as valid, are violating those provisions of Tennessee’s Constitution that have never been enjoined by any court or repealed by vote of the people.

In fact, the still-applicable provisions of the Tennessee Constitution expressly make at least the licenses issued to same-sex couples “void and unenforceable.” And some lawyers argue that a county clerk should not issue any marriage licenses until a court determines how the holdings in Obergefell apply to the statutes governing the issuance of licenses. If the holdings in Obergefell make the existing statutes unenforceable, then no licenses can be issued to anyone, but if a county clerk continues to follow the state constitution and the language in the statutes, since their enforcement has never been enjoined, then he or she may be violating Obergefell’s holdings

This uncertainty cannot be allowed to remain, but the best alternative for steering clear of the actual holdings in Obergefell while adhering to the provisions of the state’s constitution is for a man and woman to enter into a marital relation under the common law. Tennessee is a common law state, and repeal of the mandatory licensures statutes removes any prohibition on marriage at common law.

However, the Marital Contract Recording Act will allow the man and woman to make public the fact they have entered into a marital contract for the sake of third parties such as employers, insurance companies, and the like. It operates in the same way that real estate transactions, which are private contracts, too, are handled, and that system has worked just fine for decades.