Pennsylvania Divorce, Annulment & Common Law Marriage

By Lisa Marie Vari , Esquire

Requirement for a Valid Marriage

It goes without saying that there must be a valid marriage before there can be a divorce or an annulment. In most circumstances, a marriage is entered into as part of a civil or religious ceremony and a marriage license is obtained. However, Pennsylvania was one of the few states that also recognized common law marriages. A common law marriage is a marriage entered into by the parties informally, without a civil or religious ceremony. The parties must exchange "words of the present intent" indicating their desire to be married and hold themselves out in the community as married individuals. There was never a requirement in Pennsylvania law that the individuals reside together for a certain period of time before they would be considered to be common law husband and wife. While common law marriages entered into prior to January 1, 2005 may be valid, Pennsylvania does not recognize common law marriages attempted to be entered into after January 1, 2005. Pennsylvania Governor Ed Rendall signed the new legislation that abolishes common law marriages on a prospective basis after January 1, 2005. The legislation provides that it does not invalidate any common law marriage "otherwise lawful and contracted on or before January 1, 2005." Pennsylvania was one of the few remaining states to permit common law marriages until the Pennsylvania Commonwealth Court's September 2003 decision in PNC Bank Corporation v. Workers' Compensation Appeals Board that purported to abolish common law marriage. However, the Pennsylvania Superior Court in two subsequent opinions refused to follow the PNC Bank Corporation opinion indicating that the abolition of common law marriage should only be done with a statute enacted by the Pennsylvania legislature and not by judicial action.

Residency Requirements for Obtaining a Pennsylvania Divorce

A threshold requirement for obtaining a divorce is residency or domicile of one or both parties who are to be divorced. "Residency" refers to the state in which a person lives; "domicile" refers to the state that the person regards as "home." Usually the state of a person's residency and domicile are the same, but sometimes they can be different. A divorce can be commenced in Pennsylvania if at least one of the spouses has been a "bona fide resident" of Pennsylvania for at least six months prior to the filing of the divorce complaint. "Bona fide resident" means actual residence coupled with the intention to remain there permanently or indefinitely.

Grounds for Divorce in Pennsylvania

The party seeking a divorce must state a ground for divorce in the initial documents filed with the court. This document is called the Divorce Complaint. The grounds may be based on no-fault or fault. Over the last twenty years, "no-fault" has replaced "fault" as the dominant basis for obtaining a divorce. No-fault divorces are considered to be a more humane and realistic way to end a marriage. Husbands and wives who are divorcing usually are suffering enough without adding more fuel to the emotional fires by trying to prove who did what to whom. The laws of no-fault divorce recognize that human relationships are complex and that it is difficult to prove that a marriage broke down solely because of what one person did. A no-fault divorce is a divorce in which neither the wife nor husband blames the other for breakdown of the marriage. There are no accusations necessary to obtain a divorce and no need to prove "guilt" or "fault".

Pennsylvania Fault Divorces

In Pennsylvania, spouses still can be divorced under fault-based grounds. Fault based divorces are awarded to the "innocent and injured spouse" when the other spouse has willfully deserted the marriage for a period greater than one year, committed adultery, endangered the life or health of the other spouse, entered into a bigamous marriage, been sentenced to prison for two of more years, or "offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome." However, as stated above, it is often expensive to proceed in this emotionally charged manner and often yields little benefits to do so. In fact, fault is irrelevant for purposes of marital property division and only plays a limited role in support cases. Most divorces are now processed under the no-fault divorce methods.

Pennsylvania No-Fault Divorces

Under Pennsylvania's no-fault method, a divorce decree can be processed as soon as ninety days after the filing and service upon the other spouse of a divorce complaint if both spouses will consent to the entry of the decree. If one spouse fails to consent to the entry of the decree, a no fault decree can be entered if the marriage is irretrievably broken and the spouses have been separated for at least two years.

With regard to the date of separation, please be advised that there is no such thing as a legal separation in Pennsylvania. It is presumed that the date of the filing of a divorce complaint is the date of separation unless the facts justify using an earlier date. In some circumstances, spouses can be separated even if they continue to reside in the same household.

What is a Divorce Decree?

A divorce decree is nothing more than an order of court declaring the end of a marriage. The divorce decree allows either spouse to remarry or leave their estate upon their death to the person of their choosing. While the decree itself may not necessarily be the most import aspect of a divorce case, the issues of equitable distribution and alimony cannot be resolved except in conjunction with obtaining the divorce decree.

Legal Annulments in Pennsylvania

Occasionally, people who live as a married couple learn that their marriage is not valid or legal. In this situation, a court may grant a legal annulment instead of a divorce. An annulment is a legal declaration that a valid marriage never existed. This differs from a divorce which declares that a valid marriage is over.

In Pennsylvania, invalid marriages include situations such as when either party had an existing spouse at the time of the marriage, when the parties are blood relatives within a certain degree, or when either party could not consent because of a mental defect or other related reason. Other marriages may be declared void by Pennsylvania courts and an annulment granted if requested by one of the parties. In Pennsylvania, voidable marriages arise when the spouses are less than sixteen years of age and lack the consent of a parent or the court to marry, where either party was under the influence of drugs or alcohol, when either party was at the time of the marriage incurably impotent and the other spouse was unaware of this fact, and when either party entered into the marriage as a result of fraud, duress, coercion, or force. Marriage is a contract, and if either individual was unable to enter into the contract, the court may determine that no contract of marriage ever existed.

Religious-based Annulments

An annulment granted through a church or religious-based entity is not the same as a legal annulment. Only a legal annulment or divorce gives the parties the right to remarry. A religious-based annulment gives the parties the right to remarry through their religious organization. A party in a religious-based annulment is not represented by a lawyer, but is often counseled through the process by a priest, minister or rabbi.

Disclaimer

The statements in this section are based on Pennsylvania law and have been issued to inform and not advise. The statements are general in nature and individual facts in a given case may alter their application or involve other laws not referred to here.

ABOUT THE AUTHOR
Lisa Marie Vari, has focused her legal efforts in the family law field for over ten years. Attorney Vari handles the most complicated aspects of the firm's divorce, equitable distribution, support and child custody matters. Ms. Vari is a member of the Allegheny County Bar Association and the Pennsylvania Bar Association, including the family law sections of both organizations, and the Allegheny County Matrimonial Inns of Court.