In a post last week, I detailed the ‘spousal privilege’ rule, preventing a husband or wife from being compelled to testify against their spouse. In the past week, I’ve read a few articles claiming that Aaron Hernandez and his fiance, Shayanna Jenkins, may be able to claim they had a common law marriage to prevent the prosecution from forcing Jenkins to testify against Hernandez. Common law marriage is an alternative approach to marriage which a state will recognize, despite the marriage statutes of that state not being met. The requirements for common law marriage vary from state to state, but three elements generally exist:
- Both parties in the marriage must intend to be married;
- The parties must live together; and
- The couple must hold themselves out to the community as married.
All three of these elements must be present at the same time for there to be a valid common law marriage. The elements can be proven through circumstantial evidence such as jointly owned property, joint bank accounts or a shared last name.
The significant road block that Hernandez will hit, is only twelve states and the District of Columbia (as far as I know) recognize common law marriage and Massachusetts is not one of them. The only way for Hernandez and Jenkins to claim common law marriage in Massachusetts is if they established it in a state that does recognize it. To establish that in another state would require Hernandez and Jenkins to have lived in that state. Florida does not recognize common law marriage and being that Hernandez played for the University of Florida and was subsequently drafted to the Patriots, it’s unlikely they would be able to establish common law marriage in any other state.
To set the record straight, the only way for Hernandez and Jenkins to prevent the State from forcing Jenkins to testify, is to get married in Massachusetts prior to a potential trial. That’s assuming Jenkins really does not want to testify against Hernandez.