#25065-rev & rem-JKM 

2010 SD 2

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

THE ESTATE OF PAUL A. 

DUVAL, Deceased. 

KAREN HARGRAVE, Petitioner and Appellee, 

 v. 

NATHALIE DUVAL-COUETIL and 

ORIELLE DUVAL-GEORGIADES, Respondents and Appellants. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SEVENTH JUDICIAL CIRCUIT 

CUSTER COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JEFF W. DAVIS 

Judge 

* * * * 

PATRICK M. GINSBACH 

JAMES G. SWORD of 

Farrell, Farrell and Ginsbach, PC Attorneys for petitioner 

Hot Springs, South Dakota and appellee. 

GERALD M. BALDWIN Attorney for respondents 

Custer, South Dakota and appellants. 

* * * * 

 ARGUED ON OCTOBER 7, 2009 

 OPINION FILED 01/06/10
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MEIERHENRY, Justice 

[¶1.] Nathalie Duval-Couetil and Orielle Duval-Georgiades (Daughters) 

appeal the circuit court’s judgment that Karen Hargrave (Hargrave) was the 

common-law wife of their father, Paul A. Duval (Duval). Daughters contend the 

circuit court erred when it held that Duval and Hargrave entered into a commonlaw marriage under the laws of Mexico and Oklahoma. We agree and reverse the 

circuit court. 

FACTS AND BACKGROUND

[¶2.] Duval and Hargrave began living together in Massachusetts in 1994. 

In 1995, Duval acquired a home in Custer, South Dakota. Hargrave moved from 

Massachusetts to Duval’s home in South Dakota in 1996. In 1997, Duval and 

Hargrave began a yearly routine of spending the summer months in Custer and the 

winter months in Mexico. In 1998, Duval and Hargrave bought a home together in 

Nuevo Leon, Mexico, as husband and wife. 

[¶3.] In 2005, Duval was assaulted while in Mexico and placed in an 

intensive care unit for his injuries. Hargrave lived with Duval at the hospital while 

he was being treated. She later took Duval to Oklahoma for rehabilitation at a 

hospital in the Tulsa area and eventually to Rochester, Minnesota, for medical 

treatment at Mayo Clinic. Duval and Hargrave subsequently returned to 

Oklahoma for a period of time; and then, resumed their annual routine of spending 

winters in Mexico and summers in Custer. Duval was killed as a result of a rock 

climbing accident on June 24, 2008, in Custer County, South Dakota. 
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[¶4.] Duval and Hargrave never formally married. Hargrave testified that 

she and Duval had discussed a formal wedding ceremony, but mutually decided 

against it. She said they did not think they needed to marry because they held 

themselves out as husband and wife and felt like they were married. The circuit 

court specifically found that over the course of Duval and Hargrave’s relationship, 

Duval referred to Hargrave as his wife on an income tax return form, designated 

her as the beneficiary on his VA health benefits application, and executed a general 

power of attorney in her favor. 

[¶5.] The circuit court ultimately concluded that Hargrave had established 

that she and Duval met the requirements for a common-law marriage under the 

laws of both Mexico and Oklahoma. As such, Hargrave was treated as Duval’s 

surviving spouse for inheritance purposes in South Dakota. Daughters appeal. 

Daughters’ main issue on appeal is whether the circuit court erroneously recognized 

Hargrave as Duval’s surviving spouse entitling her to inherit from his estate. They 

claim (1) that the South Dakota domicile of Duval and Hargrave precluded them 

from entering into a common-law marriage in either Mexico or Oklahoma, (2) that 

South Dakota law does not recognize a Mexican concubinage as a marriage, and (3) 

that Hargrave and Duval had not entered into a common-law marriage under 

Oklahoma law. 

ANALYSIS 

[¶6.] The relevant facts are not in dispute. Because the issues involve 

questions of law, our review is de novo. Sanford v. Sanford, 2005 SD 34, ¶12, 694 

NW2d 283, 287. The first issue centers on whether South Dakota will give effect to 
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a common-law marriage established by South Dakota domiciliaries while living in a 

jurisdiction that recognizes common-law marriage.

Common-Law Marriage 

[¶7.] Common-law marriages were statutorily abrogated in South Dakota in 

1959 by an amendment to SDCL 25-1-29. Notwithstanding, Hargrave contends 

that South Dakota continues to recognize valid common-law marriages entered into 

in other jurisdictions. Hargrave relies on SDCL 19-8-1, which provides that “[e]very 

court of this state shall take judicial notice of the common law and statutes of every 

state, territory, and other jurisdiction of the United States.” Id. In addition to 

taking judicial notice of the common-law of other states, the South Dakota 

Legislature specifically addressed the validity of marriages entered into in other 

jurisdictions in SDCL 25-1-38. This statute provides that “[a]ny marriage 

contracted outside the jurisdiction of this state . . . which is valid by the laws of the 

jurisdiction in which such marriage was contracted, is valid in this state.” Id. In 

view of these statutes, we conclude that a common-law marriage validly entered 

into in another jurisdiction will be recognized in South Dakota.* 

[¶8.] Daughters argue that the domicile of the couple controls their ability to 

enter into a common-law marriage. Daughters urge this Court to adopt a rule 

requiring parties to a common-law marriage to be domiciled in the state in which 

* Notably, “a common law marriage contracted in a state of the United States 

that recognizes common law marriages is just as valid as a ceremonial 

marriage . . . [and] is not a second-class sort of marriage[.]” Rosales v. Battle, 

7 CalAppRptr3d 13, 17, 113 CalApp4th 1178, 1184 (2003) (citations and 

quotations omitted). 
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the marriage occurred. Thus, a couple domiciled in South Dakota could not be 

considered married merely by traveling to another state that recognizes commonlaw marriage and meeting that state’s common-law marriage requirements. 

Daughters further allege that at all relevant times, Duval and Hargrave were 

domiciled in South Dakota, thereby precluding them from entering into a commonlaw marriage in either Mexico or Oklahoma. Daughters cite Garcia v. Garcia as 

authority for the domicile requirement. 25 SD 645, 127 NW 586 (1910). In Garcia,

we said that a marriage “valid in the state where it was contracted, is to be 

regarded as valid in [South Dakota].” Id. at 589. We do not interpret Garcia as 

requiring domicile in the state in which the marriage occurred. 

[¶9.] This is consistent with other jurisdictions that do not require parties to 

establish domicile in the state where the common-law marriage occurred. 

Minnesota courts have recognized common-law marriages entered into in other 

jurisdictions. In Pesina v. Anderson, the court held it would “recognize a commonlaw marriage if the couple takes up residence (but not necessarily domicile) in 

another state that allows common-law marriages.” 1995 WL 387752 *2 

(MinnCtApp 1995) (quoting Laikola v. Eng’r Concrete, 277 NW2d 653, 658 (Minn 

1979)) (citations omitted). Similarly, in Vandever v. Indus. Comm’n of Ariz., the 

court stated that it “disagree[d] with the legal reasoning of cases which hold that 

the policy of the domicile disfavoring common-law marriages should govern unless 

the couple has subsequently established residence in a state recognizing such 

marriages.” 714 P2d 866, 870 (Ariz 1985). The Vandever court went on to state, 

“[t]hese cases effectively read a requirement of residency into the law of all 
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common-law marriage[] states which may or may not exist.” Id. See Grant v. 

Superior Court in and for County of Pima, 555 P2d 895, 897 (ArizCtApp 1976) 

(“Although Arizona does not authorize common law marriage, it will accord to such 

a marriage entered into in another state the same legal significances as if the 

marriage were effectively contracted in Arizona.”). Mississippi has also recognized 

that “[t]he [domicile requirement] argument ignores the basic right of all persons to 

choose their place of marriage. As long as they follow the requirements of the law of 

the state of celebration, the marriage is valid in most jurisdictions.” George v. 

George, 389 So2d 1389, 1390 (Miss 1980). Likewise, Maryland “has continuously 

held that a common-law marriage, valid where contracted, is recognized in 

[Maryland].” Goldin v. Goldin, 426 A2d 410, 412 (MdCtSpecApp 1981). 

[¶10.] In addition to Garcia, the plain meaning of SDCL 25-1-38 does not 

require domicile in the foreign jurisdiction in order for the marriage to be 

considered valid in South Dakota. Consequently, we hold that South Dakota does 

not require domicile in the foreign jurisdiction before recognizing that jurisdiction’s 

common-law marriage scheme. All that is necessary for a marriage from another 

jurisdiction to be recognized in South Dakota is for the marriage to be valid under 

the law of that jurisdiction. See SDCL 25-1-38. Thus, the question in this case is 

whether Duval and Hargrave would be considered validly married under the laws of 

either Nuevo Leon, Mexico, or Oklahoma.

Concubinage in Mexico 

[¶11.] The parties agree that Nuevo Leon, Mexico, has no common-law on 

which a common-law marriage could be established. See In the Common Law of 
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Mexican Law in Texas Courts, 26 Hous J Int’l L 119, 151-56 (2003) (citing Nevarez 

v. Bailon, 287 SW2d 521, 523 (TexCivApp 1956)). Nuevo Leon does, however, have 

a law that gives certain rights to persons who have entered into a concubinage. 

Hargrave provided the state law of Nuevo Leon, which defines a concubinage as: 

[T]he union of a man and woman, free from formal matrimony, 

who for more than five years make a marital life without being 

united in a formal matrimony unto the other as long as there is 

no legal impediment to their contracting it. The concubine’s 

gender union can have rights and obligations in reciprocal form, 

of support and inheritance, independently of all others 

recognized by this code or other laws. 

Compilacion Legislativa del Estado de Nuevo Leon, p 50, Book I of Persons, Title V 

of Matrimony, Ch 11 of Concubinage, Art 291. The circuit court concluded that 

concubinages were to be given the same legal effect as common-law marriages 

validly entered into in the United States. Daughters argue, however, that a 

concubinage is not the legal equivalent of a common-law marriage. 

[¶12.] Other courts that have addressed this issue have declined to equate a 

concubinage with a common-law marriage. In Nevarez, the court held a woman who 

cohabited with a man within the definition of a concubinage was not entitled to 

claim any of the man’s property after his death as his common-law wife because 

common-law marriage was not recognized in that Mexican state. 287 SW2d at 523.

The court noted that under Mexican law a concubinage was a “‘legal union’ but not 

a legal marriage.” Id. Because the woman met the definition of a concubine, she 

was entitled to certain rights, but was not a common-law wife under the laws of 

Mexico. Id. Consequently, she was not entitled to the benefits given to a common-
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law wife in Texas “for such a relationship [was] non-existent in [Mexico],” and she 

would not “qualify in her home jurisdiction as a surviving wife.” Id. at 525. 

[¶13.] A California court similarly addressed the issue of whether 

“concubinage is equivalent to a Mexican common law marriage[.]” Rosales, 113 

CalApp at 1183. In Rosales, a Mexican citizen claimed she was the surviving 

spouse, for purposes of a wrongful death claim, of a deceased American who was the 

father of her children. Id. The Rosales court, citing Nevarez, determined “that 

although concubinage is a legal relationship in Mexico, it is not a legal marriage.” 

Id. at 1184. The Rosales court affirmed the trial court on this basis recognizing that 

“concubinage is not equivalent to a common law marriage because it does not confer 

on the parties all of the rights and duties of marriage.” Id.

[¶14.] We are persuaded by the reasoning of Nevarez and Rosales and also 

conclude that a Mexican concubinage is not the legal equivalent of a common-law 

marriage in the United States. Consequently, the circuit court erred in concluding 

the concubinage between Duval and Hargrave, if one existed, had the same legal 

effect as a common-law marriage. Therefore, we reverse on this issue. 

Common-Law Marriage in Oklahoma 

[¶15.] The circuit court concluded that Duval and Hargrave entered into a 

valid common-law marriage while they lived in Oklahoma. The Oklahoma Court of 

Civil Appeals recently reaffirmed its recognition of common-law marriages and its 

requirements. The court stated: 

[T]his Court recognizes in accordance with established 

Oklahoma case law that, absent a marital impediment suffered 

by one of the parties to the common-law marriage, a commonlaw marriage occurs upon the happening of three events: a 
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declaration by the parties of an intent to marry, cohabitation, 

and a holding out of themselves to the community of being 

husband and wife. 

Brooks v. Sanders, 190 P3d 357, 362 (OklaCivApp 2008). In Brooks, the court 

referenced an earlier Oklahoma case that explained the requirements of 

Oklahoma’s common-law marriage as follows: 

‘To constitute a valid ‘common-law marriage,’ it is necessary 

that there should be an actual and mutual agreement to enter 

into a matrimonial relation, permanent and exclusive of all 

others, between parties capable in law of making such contract, 

consummated by their cohabitation as man and wife, or their 

mutual assumption openly of marital duties and obligations. A 

mere promise of future marriage, followed by illicit relations, is 

not, in itself, sufficient to constitute such marriage.’ 

Id. at 358 n2 (quoting D.P. Greenwood Trucking Co. v. State Indus. Comm’n, 1954 

OK 165, 271 P2d 339, 342 (quoting Cavanaugh v. Cavanaugh, 1929 OK 101, 275 P 

315)). Based on the language of these two cases, it appears that Oklahoma requires 

(1) a mutual agreement or declaration of intent to marry, (2) consummation by 

cohabitation, and (3) publicly holding themselves out as husband and wife. 

Oklahoma law requires the party alleging a common-law marriage satisfy these 

elements by clear and convincing evidence. Standefer v. Standefer, 2001 OK 37, 

¶11, 26 P3d 104, 107 (citing Maxfield v. Maxfield, 1953 OK 390, ¶24, 258 P2d 915, 

921). 

[¶16.] Thus, the first requirement Hargrave had to satisfy by clear and 

convincing evidence was that she and Duval had mutually agreed and/or declared 

their intent to marry while in Oklahoma. Brooks, 190 P3d at 362. “Some evidence 

of consent to enter into a common-law marriage are cohabitation, actions consistent 

with the relationship of spouses, recognition by the community of the marital 
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relationship, and declarations of the parties.” Standefer, 2001 OK 37, ¶11, 26 P3d 

at 107 (citing Reaves v. Reaves, 1905 OK 32, 82 P 490). The circuit court made no 

finding on mutual agreement or declaration of intent to marry, yet concluded that 

Duval and Hargrave entered into a common-law marriage. We have said a circuit 

court “is not required to ‘enter a finding of fact on every fact represented, but only 

those findings of fact essential to support its conclusions.’” In re S.K., 1999 SD 7, 

¶8, 587 NW2d 740, 742 (quoting Hanks v. Hanks, 334 NW2d 856, 858-59 (SD 

1983)). A finding on whether the couple mutually agreed or declared their intent to 

marry while in Oklahoma was essential to support the circuit court’s conclusion 

that they entered into a common-law marriage. A review of the testimony may 

explain why the circuit court was unable to enter a finding of a mutual agreement 

or declaration of intent to enter into a marital relationship. 

[¶17.] Hargrave testified that she and Duval entered into an “implicit 

agreement” to be married while they were in Oklahoma. She also testified that 

“nobody said, okay, so we should agree to be married and write it down and put the 

date on it.” When asked on cross-examination if there was ever a point when she 

and Duval made an agreement to be married, Hargrave stated in the negative, and 

said the couple just decided “well, I guess we are [married].” 

[¶18.] The Oklahoma Supreme Court addressed this issue under a similar 

situation and recognized the importance of establishing a clear intent to marry. 

Standefer, 2001 OK 37, ¶11, 26 P3d at 107-08. In Standefer, the court stated the 

“evidence [wa]s clear and convincing that both parties assented to a marriage on 

Thanksgiving Day of 1988.” Both the husband and wife in Standefer agreed that 
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they were common-law spouses as a result of their mutual assent to marry on that 

day. Significantly, the couple was able to identify an instance where they mutually 

assented to a marriage. This fact stands in contrast to the present case where 

Hargrave’s testimony established that no specific time existed when the couple 

mutually agreed or declared their intent to be married. To meet Oklahoma’s 

requirements, their mutual agreement or declaration to marry would have to be 

more than an implicit agreement. This consent requirement is consistent with 

SDCL 25-1-38, which sets forth the requirement that a marriage must be 

“contracted” in the other jurisdiction before South Dakota will recognize the 

marriage as valid. SDCL 25-1-38 provides “[a]ny marriage contracted outside the 

jurisdiction of this state . . . which is valid by the laws of the jurisdiction in which 

such marriage was contracted, is valid in this state.” Id. (emphasis added). Failing 

to establish that mutual assent or a declaration to marry took place, Hargrave could 

not meet the first requirement for entering into a common-law marriage in 

Oklahoma as outlined by Brooks. 190 P3d at 362. 

[¶19.] The absence of a finding of fact on this issue, coupled with Hargrave’s 

testimony, leads to a conclusion that as a matter of law Hargrave could not prove by 

clear and convincing evidence that the couple entered into a valid common-law 

marriage while in Oklahoma. Thus, no legal basis existed to support the circuit 

court’s conclusion that the parties entered into a common-law marriage in 

Oklahoma. 
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CONCLUSION 

[¶20.] Based on the foregoing, we conclude that Duval and Hargrave were not 

validly married under either Mexico or Oklahoma law. Consequently, Hargrave 

cannot be considered a surviving spouse for purposes of inheriting from Duval’s 

estate. 

[¶21.] We reverse and remand to the circuit court for proceedings consistent 

with this opinion. 

[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

SEVERSON, Justices, concur.