Toye v. Toye

District of Columbia Court of Appeals

Toye v. Toye

170 A.2d 778, 1961 D.C. App. LEXIS 223

CourtDistrict of Columbia Court of Appeals

DecidedMay 19, 1961

Docket2715

StatusPublished

Cited by2 cases

This text of 170 A.2d 778 (Toye v. Toye) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Toye v. Toye, 170 A.2d 778, 1961 D.C. App. LEXIS 223 (D.C. 1961).

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Opinion

HOOD, Associate Judge.

Appellant, alleging a common-law marriage between herself and appellee, sued for a divorce on the ground of five years’ voluntary separation. 1 Though personally served, appellee did not appear and was represented by court-appointed counsel. The trial court held that appellant’s evidence failed to establish a common-law marriage and dismissed the complaint. Appellant says this was error.

Common-law marriages are recognized as valid in this jurisdiction. Hoage v. Murch Bros. Const. Co., 60 App.D.C. 218, 50 F.2d 983. It is essential to the validity of such a marriage that parties, legally capable of entering into that relationship, mutually consent or agree to do so, and that the agreement be consummated by cohabitation. Cohabitation and reputation alone are not sufficient. Cohabitation must follow an express agreement to be husband and wife. United States Fidelity & Guaranty Co. v. Britton, 106 U.S.App.D.C. 58, 269 F.2d 249.

In the present case cohabitation and reputation were proved. Our question is whether there was proof of an agreement to be husband and wife.

Appellant testified that in March 1949 she and appellee “agreed to live under the *779 same household”; that “it was just one of those things where we just didn’t bother to go through any ceremony”; that they agreed to get an apartment “and get married later on”; and that when she saw marriage “wasn’t going to take place,” she left appellee; that this separation was agreeable to her and, as far as she knew, it was agreeable to appellee.

It is possible this testimony would have supported a finding that there was an express agreement between the parties to be husband and wife, and that such agreement was followed by cohabitation in good faith; but the evidence was certainly not so overwhelmingly clear as to compel such a finding. The trial court, as trier of the facts, was free to conclude, as it did, that the parties never expressly agreed to be husband and wife, and that, in the words of the trial court: “The most that plaintiff ever obtained from defendant was a promise to marry her, which he never kept.”

Affirmed.

1

. Code 1951, § 16-403.

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HOOD, Associate Judge.

Appellant, alleging a common-law marriage between herself and appellee, sued for a divorce on the ground of five years’ voluntary separation. 1 Though personally served, appellee did not appear and was represented by court-appointed counsel. The trial court held that appellant’s evidence failed to establish a common-law marriage and dismissed the complaint. Appellant says this was error.

Common-law marriages are recognized as valid in this jurisdiction. Hoage v. Murch Bros. Const. Co., 60 App.D.C. 218, 50 F.2d 983. It is essential to the validity of such a marriage that parties, legally capable of entering into that relationship, mutually consent or agree to do so, and that the agreement be consummated by cohabitation. Cohabitation and reputation alone are not sufficient. Cohabitation must follow an express agreement to be husband and wife. United States Fidelity & Guaranty Co. v. Britton, 106 U.S.App.D.C. 58, 269 F.2d 249.

In the present case cohabitation and reputation were proved. Our question is whether there was proof of an agreement to be husband and wife.

Appellant testified that in March 1949 she and appellee “agreed to live under the *779 same household”; that “it was just one of those things where we just didn’t bother to go through any ceremony”; that they agreed to get an apartment “and get married later on”; and that when she saw marriage “wasn’t going to take place,” she left appellee; that this separation was agreeable to her and, as far as she knew, it was agreeable to appellee.

It is possible this testimony would have supported a finding that there was an express agreement between the parties to be husband and wife, and that such agreement was followed by cohabitation in good faith; but the evidence was certainly not so overwhelmingly clear as to compel such a finding. The trial court, as trier of the facts, was free to conclude, as it did, that the parties never expressly agreed to be husband and wife, and that, in the words of the trial court: “The most that plaintiff ever obtained from defendant was a promise to marry her, which he never kept.”

Affirmed.

1

. Code 1951, § 16-403.

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170 A.2d 778, 1961 D.C. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toye-v-toye-dc-1961.

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