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COMMONWEALTH EX REL. DE MARCO v. DE MARCO (01/12/50)

January 12, 1950

COMMONWEALTH EX REL. DE MARCO
v.
DE MARCO



COUNSEL

H. Lester Haws, Ardmore, Frank J. Fortunato, Philadelphia, for appellant.

John Edward Sheridan, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Hirt

[ 166 Pa. Super. Page 70]

HIRT, Judge.

In this proceeding, brought under the Act of June 24, 1939, P.L. 872, § 733, 18 P.S. § 4733, the lower court, on a finding that relatrix is the common law wife of the respondent, ordered him to pay $25 per week for her support and that of their minor child. Respondent's paternity of the child is clearly established. The serious question is whether there was a marriage at common law.

The existence of a valid marriage must be proved. But there is no merit in respondent's contention that the court, in a proceeding for support under the above Act, lacks jurisdiction to determine whether the essential elements of a marriage at common law have been established. That has never been a question solely for a jury. Finders of facts, in proceedings generally, have jurisdiction to determine the question of the existence of a common law marriage whenever material to the issue. e. g. Wilbert v. Com. Sec. Reserve Acc. et al., 143 Pa. Super. 37, 17 A.2d 732, where the Workmen's Compensation Board found the controlling fact; In re Krystkiewicz's Estate, 310 Pa. 298, 165 A. 230, a proceeding in the Orphans' Court in which an award to a

[ 166 Pa. Super. Page 71]

    claimant was sustained on a finding that he was the common law husband of the decedent.

It is admitted that a meretricious relationship between the parties began as early as May 1945. Relatrix then rented a building in Devon which she, over a period of years, sublet to a number of State Police Officers for use as a barracks. She supplied both board and lodging to them there, at a profit to her, and she continued to live on the premises with the respondent. Although the meretricious nature of the relationship, from its inception, remained unchanged, they began to hold themselves out as husband and wife in May 1945. Relatrix now relies on a marriage contract allegedly entered into with respondent on October 27, 1945. She testified that then 'There was an agreement between us, Charlie just said he would take me as his wife, and that's all there was to it. * * * We were on the studio couch and Charlie said, 'Blanche, I will take you for my wife', and I said, 'I will take you for my husband'. That is the language of the alleged marriage contract in its entirety according to relatrix. It was denied by respondent that the agreement ever took place.

Since the relatrix asserted a contract of marriage the evidence as to cohabitation and reputation goes for nothing if the agreement is legally insufficient to establish the fact of marriage at common law. And the relationship of the parties, admittedly meretricious up to the time of the alleged agreement, was presumed to continue so, and could be converted into a valid and legal marriage only by the consent of both parties established by clear and convincing evidence. Pierce v. Pierce, 355 Pa. 175, 49 A.2d 346; In re Rosenberger's Estate, 362 Pa. 153, 65 A.2d 377. 'This court has frequently held that the mere fact that a man and woman live together, even though for a long period of years, will not sustain an order for support under the Act in the absence of a legal marriage.' Com. ex rel. Allison v. Allison, 151 Pa. Super. 369,

[ 166 Pa. Super. Page 7230]

A.2d 365, 366. And it is settled law that where evidence of reputation and cohabitation is insufficient to support a presumption of marriage, a common law marriage must be evidenced by words in the present tense uttered with a view and for the purpose of establishing the immediate relation of husband and wife. In re Murdock's Estate, 92 Pa. Super. 275; Baker v. Mitchel ...


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