I’ll explain within the next paragraph what I mean by “common law divorce,” but first a short refresher about common law marriage. Through January 1, 1958 Indiana was said to tolerate common law marriage but not to encourage that arrangement. In the 1956 case of Anderson v. Anderson, 131 N.E.2d 301 (Ind. 1956) a unanimous Indiana Supreme Court held that the parties had not entered into a common law marriage despite holding themselves out as husband and wife and cohabiting for more than a decade and having a child together. While the “husband” promised repeatedly to marry his partner at some (indefinite) future time, such a “contract per verba de futuro” (as opposed to “contract per verba de presenti“) was held insufficient to establish the marriage contract aspect of common law marriage. Then the General Assembly finished the mercy killing of common law marriage in Indiana with 1957 legislation declaring void any common law marriage entered into after January 1, 1958. That legislation is now found at IC 31-11-8-5. Though I entered the practice of law in 1975, I do not recall ever handling the dissolution of a common law marriage entered into in Indiana.
By “common law divorce” I mean that pervasive phenomenon of couples cohabiting for a time, breaking up, and then struggling to disentangle their commingled property and other affairs of the purse. Where do these couples go for a legal remedy? They have no access to divorce courts (without having been married). So they find their way to various civil courts, more often small claims if they are pro se and/or the jurisdictional limit will accommodate the amount in controversy. While such an action may look like replevin, partition, or breach of contract, I call it common law divorce, or divorce for couples that were never really married.
There were once more judges (than those now serving) committed to the notion that the unforgivably stupid or immoral litigant should find no solace in the courts. Members of that robed fraternity were hostile to the concept of common law divorce, both before and after Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind.Ct.App. 1980), which I view as the seminal case for common law divorce in Indiana. Laurel Glasgo (a man) married Jane. The marriage persisted around 11 years during which the parties had two sons, and Laurel went to college and veterinarian school. Then came the divorce and six years apart followed by a reconciliation of sorts without the benefit of marriage. By then it was 1973, well after the statutory ban on common law marriage in Indiana.
During the years of reconciliation Laurel and Jane built a house on land that Laurel owned. They jointly acquired various items of personal property as well. Laurel declined to remarry Jane but sought to assure her with statements like “what is mine is yours.” The reconciliation was finished off with Laurel’s announcement of his intent to marry a nineteen-year-old woman who was pregnant with his child. Jane moved out with the boys and with a share of the tangible personal property and later sued to recover one-half the value of the house.
The trial court awarded Jane a portion of what she requested, and Laurel appealed, arguing in relevant part that Jane’s suit against him was contrary to public policy (on grounds of immorality). Even in 1980 the Court of Appeals had to wrestle with the issue of whether a suit by an unwed domestic partner to even up the property split was violative of public policy due to the immorality of the foundational relationship. Amid a dearth of Indiana precedent, good lawyering on behalf of Laurel brought into play recent precedent from the Illinois Supreme Court, Hewitt v. Hewitt, (1979) 394 N.E.2d 1204, affirming the trial court’s dismissal of an unmarried woman’s action for a property settlement and other relief against her affluent partner and father of her children. The Glasgo panel gave remarkable attention to Hewitt before rejecting its reasoning.
Once the Court of Appeals went past its own discomfort with the cohabitation of unmarried people (and thus dispensing with the “public policy” defense), there was still the threshold issue of what cause of action warranted relief to Jane. Was her action one for equitable relief? Was it for breach of the “what is mine is yours” promise (or contract)? Or was it more of a partition? The Glasgo panel opted for contract and equity as the theories supporting relief for Jane and affirmed the trial court.
The Glasgo panel purported to decide narrowly in affirming the trial court. The Opinion cautioned that “…[W]e do not subscribe to the theory that cohabitation automatically gives rise to the presumed intention of shared property rights between the parties.” Jane’s claim seems to have been saved by “substantial evidence” of an implied and express contract between the parties. There was clearly no intent in the Glasgo opinion to throw open the floodgates to property litigation among former cohabitants.
The next CLB article will discuss Common Law Divorce after Glasgo.
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