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Groundbreaking ruling recognizes same-sex common-law marriage in Utah

First Published      Last Updated Dec 28 2015 10:54 am

Groundbreaking decision believed to be the first for any gay couple in Utah, attorney says.

The best gift Nicki Bidlack got for Christmas in 2015 was a piece of paper.

It's an amended birth certificate for her 2-year-old son that lists both Bidlack and the late Sara Clow as the boy's mothers.

"This is what she would have wanted," said Bidlack, 41, of Ogden, her voice trembling as tears slid across her cheeks. "She wanted him from before he was born. To have her name on it … to have him see her name, even though she's not here … she would be so happy."

Clow, 29, died from injuries sustained when she rolled her pickup on Interstate 15 near Willard just before midnight on Sept. 13, 2014.

The birth certificate was issued as part of a Dec. 4 order from 2nd District Judge Ernest Jones that recognized the couple's eight-year relationship as a common-law marriage — a decision believed to be the first for any gay couple in Utah, attorney Christopher Wharton said.

The ruling will allow Bidlack to access critical benefits for the son she's now raising alone, Wharton added.

Because Bidlack and Clow had not married — and legally could not in Utah until two years ago — when Clow died, her estate and death benefits were out of reach, even for the couple's son, who is biologically Clow's.

"I feel like he's been denied things that any other child would have had," said Bidlack.

So she sought help from Wharton, a family law attorney, who has been a longtime advocate for gay rights.

"I was convinced that there was enough legal precedent out there that this was a 14th Amendment right being denied," he said.

Wharton had both timing and the law on his side.

Utah is one of eight states that recognizes common-law marriage, unions between two people who have not obtained a marriage license or solemnized their relationship through some other ceremony.

When written, the common-law statute was like all other Utah laws related to marriage: it applied specifically to relationships between men and women.

But in the wake of the 2013 federal court ruling that found Utah's law barring gay marriage unconstitutional, Wharton believed the finding would apply equally in the case of a common-law union.

"If the state is going to expand on who qualifies for marriage, then they have to open that door here as well," he said.

Couple that with a Utah Supreme Court decision from 2014 that said common-law status could be conferred posthumously if the claim was raised within one year, and Wharton believed he had grounds for a strong case.

He filed a petition seeking recognition for the common-law marriage in February.

Wharton had to prove three elements: mutual dependency (emotionally and financially), cohabitation, and that the couple had held themselves out to others as married.

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