Common Law Marriage in Mississippi
Can you have a common law marriage in Mississippi?
No. Common law marriages were abolished in Mississippi in 1956 with the adoption of Mississippi Code 93-1-15. Further, the legislature has made it illegal for a man and woman to live together in Mississippi if they have sexual relations.
You should be cautioned that Mississippi courts will give recognition to a valid common law marriage entered into in another state. In George v. George, 389 So.2d 1389 (Miss. 1980), a Warren County couple were married and divorced in Mississippi. The man moved to Georgia and the woman subsequently joined him where they lived together for four years, moving from Georgia, Alabama, Louisiana, and finally ending up back home in Mississippi. After separating, the woman filed for divorce in Mississippi. In upholding the divorce and division of property, the Mississippi Supreme Court stated:
- “Although common-law marriages are no longer recognized in this State,… they are recognized in Georgia… Further, if a valid common-law marriage was celebrated in Georgia, it will be recognized in this State.”
George at 1390. So you might be asking yourself, if my partner and I are living together as man and wife in Mississippi and have never been married, does that mean that my partner has no claim against my property should we split up? The answer is it depends. In a 1994 case out of Chickasaw County, a woman attempted to claim a share of her male companion’s $5,000,000 estate based upon the concept of a common law marriage. Davis v. Davis, 643 So.2d 931 (Miss.1994) The couple had lived together for 13 years, had a child together, and the wife alleged they held themselves out as husband and wife (although the man said he called her his mistress). They separated when he returned from a vacation announcing he was going to marry his secretary. A year after their separation, the woman filed a lawsuit claiming they had formed a partnership as husband and wife; thus, she was entitled to an equitable distribution of his estate. There was no evidence that the property had been accumulated through the “joint efforts” of the man and women. Further, the woman, Elvis Davis, had rejected a marriage proposal from the man. The Mississippi Supreme Court stated:
- “When opportunity knocks, one must answer its call. Elvis Davis failed to do so and thus her claim is all for naught. Our legislature has not extended the rights enjoyed by married people to those who choose merely to cohabit…. We see no reason to advocate any form of ‘palimony’ when the legislature has not spoken.”
Davis at 936. However, for those unmarried cohabitating couples, rest assured that times are a changing. Read on.
In a 2003 case out of the same county as Davis, the Mississippi Court of Appeals upheld a division of property among cohabitating partners. In Wooldridge v. Wooldridge, the couple had previously been legally married, divorced, and then lived together as husband and wife after the divorce. They even had another child following the divorce. The woman took care of the house and raising the children while the man was working. In distinguishing the case from the Davis opinion, the Mississippi Court of Appeals went to great lengths to find that the woman should be compensated for her services of a “domestic nature.” However, it is peculiar that similar evidence was present in the Davis case and ignored by the Court. The only difference between the Davis and Wooldridge case was that the Wooldridges were married at one point, albeit divorcing at a later date, while the Davis’ never married.
The other cases where Mississippi courts have upheld a division of property among cohabitating partners has been where there is evidence the property was accumulated through the “joint efforts” of the partners, one party was a victim of a void marriage and equity dictated a division of property.
With individuals living together more often without the benefit of marriage and societal views changing on this subject, I expect the Legislature or Courts will soon find more situations where a cohabitating partner is entitled to an equitable division of property accumulated during the cohabitation. You can see my previous post on the move in Mississippi from a title state to an equitable division state in property divisions during divorces by clicking here.
