I thought that I had a fairly good grasp of the implications of the Marshall-Newman amendment (at least for a layperson who reads law journals for fun), but hearing Attorney General Bob McDonnell explain why he thinks I shouldn’t be overly concerned about it has only raised more reasons to be concerned.
I knew that Virginia law has no provision for recognizing common law marriage – but Virginia does currently recognize, because of the full faith and credit clause, marriages entered into at common law in other states.
Now we know that would change if Marshall-Newman passes.
In response to a question at Tuesday night’s Town Hall meeting, McDonnell clearly stated that the Marshall-Newman amendment would prohibit the recognition of a common law marriage entered into in another state.
It is widely assumed, although only true in some states, that when a couple presents themselves to the community as if they are married, after a certain period of time (criteria vary by state), they are legally considered to be married, with all the rights and obligations of marriage.
Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as “regular” married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry.
— Common law marriage fact sheet, Alternatives to Marriage Project
States that recognize common law marriage:
- Georgia (if created before 1/1/97)
- Idaho (if created before 1/1/96)
- New Hampshire (for inheritance purposes only)
- Ohio (if created before 10/10/91)
- Pennsylvania (if created before 9/03)
- Rhode Island
- South Carolina
- Washington, D.C.
Therefore, unsuspecting straight couples who are legally married in one of these states, upon moving to Virginia, will find that they are no longer married. Since there will be no formal notification of this fact, they will in many cases find this out in the midst of some horrible crisis, when having the validity of their familial relationships challenged is the last thing they need.
Even better: Crafty people who find themselves in common law marriages that they want out of without the pesky legal responsibility of a divorce settlement can flee to Virginia. Yay! We can become a haven not only for parental kidnappers seeking to avoid the federal no-custody-judge-shopping law, but irresponsible deadbeats and jerks who want an easy way to dissolve their marriages.
Marshall-Newman proponents will retort that there is no record of this having happened as the result of another state constitutional amendment. This is true, for the simple reason that no previous state amendment’s language has gone as far as Marshall-Newman.
Vote “NO”, Virginia.