As it is undisputed that plaintiff did not obtain a marriage license, he cannot show that a statutory marriage was entered into. See 23 Pa.C.S.A. § 1301(a). Parties may, however, enter into common law marriage without a license. See Buradus v. General Cement Products Co., 356 Pa. 349, 52 A.2d 205, 208 (Pa. 1947).
A common law marriage is created when there is an express agreement between the parties by an exchange of words in the present tense spoken with the specific mutual purpose of creating the legal relationship of husband and wife. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 301 (Pa. 1996), cert. denied, 136 L. Ed. 2d 255, 117 S. Ct. 364 (1996); In re Estate of Manfredi, 399 Pa. 285, 159 A.2d 697, 700 (Pa. 1960); Commonwealth v. McLean, 387 Pa. Super. 354, 564 A.2d 216, 220 (Pa. Super. 1989). It is a "civil contract." In re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354, 357 (Pa. 1984).
The proponent of the marriage must offer "proof of an agreement to enter into the legal relationship of marriage at the present time." Id. (citing Estate of Gavula, 490 Pa. 535, 417 A.2d 168, 171 (Pa. 1980)). Evidence of a general reputation of marriage and constant cohabitation may give rise to a rebuttable presumption of marriage. 417 A.2d at 171 n.7.
The burden of proving a common law marriage is "a heavy burden." Id.; In re Estate of Stauffer, 476 A.2d at 356. "The professed contract should be examined with great scrutiny and it should plainly appear that there was an actual agreement entered into, then and there, to form the legal relationship of husband and wife." Baker v. Mitchell, 143 Pa. Super. 50, 17 A.2d 738, 741 (Pa. Super. 1941). See also In re Stevenson's Estate, 272 Pa. 291, 116 A. 162, 165 (Pa. 1922) (finding words "you are my wife ... from tonight on we are married" and agreement of other party thereto insufficient to establish common law marriage in view of surrounding circumstances and conduct). This reflects the policy of Pennsylvania not to encourage common law marriage. See Estate of Gavula, 490 Pa. 535, 417 A.2d 168 at 171.
Defendants argue with force that there is no evidence that plaintiff and Ramona Africa uttered words exhibiting their present intention (words in praesenti) specifically to create the legal relationship of husband and wife. Plaintiff does not dispute defendants' contention that he "does not believe in the legal way that people may be married in common law marriage." Plaintiff does not even allege that he and Ramona Africa intended validly to be married under the law of Pennsylvania and exchanged words to effectuate this.
There is no evidence that plaintiff and Ms. Africa enjoyed a general reputation of marriage. Plaintiff "doubts" that he publicized his putative marriage in any way. Plaintiff clearly cannot show cohabitation.
Moreover, at various times after November 1980 and before visitation privileges were in jeopardy, plaintiff affirmatively described his relationship with Ramona Africa as other than spousal.
The words spoken as related by plaintiff do not "plainly" show the making of a "civil contract" or "actual agreement" to form the legal relationship of husband and wife. Further, one cannot reasonably conclude that with whatever words he uttered in November 1980, plaintiff intended to enter a legal relationship of marriage with someone he then declared to be a friend and MOVE sister for the following three and a half years.
Plaintiff is not without recourse. The court appreciates that plaintiff prefers "his own system of marriage" and apparently eschews the "legal way" persons may effect a marriage. Nevertheless, to enter into a valid contract of marriage one must conform with the legal requirements of the state in which it is undertaken. If plaintiff and Ramona Africa truly wish to be legally married, for whatever motive, they may proceed to do so. Prisoners retain the fundamental constitutional right to marry. Turner v. Safley, 482 U.S. 78, 95-96, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). There is no apparent reason from the record to refuse Ms. Africa access to plaintiff for the purpose of marriage even if she might otherwise be properly excluded under the visitation policy regarding former inmates. See Buehl, 802 F. Supp. 1266 at 1271. Once married, assuming Ms. Africa did not breach any prison rule or engage in inappropriate conduct, there is no apparent reason thereafter to deny her visitation with plaintiff. On the record presented plaintiff cannot sustain an equal protection claim. Defendants are entitled to summary judgment in this action. Their motion will be granted. An appropriate order will be entered.
AND NOW, this day of March, 1998, upon consideration of defendants' renewed Motion for Summary Judgment and plaintiff's response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED and accordingly JUDGMENT is ENTERED in the above action for defendants and against plaintiff.
BY THE COURT:
JAY C. WALDMAN, J.