The Oklahoma Bar Journal January 2026

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The Third Way: Traditional Tribal Customary Marriages Are Here to Stay By Kevin R. Kemper, Ph.D., LL.M. L AW STUDENTS AND ATTORNEYS TEND TO THINK that there are only two types of recognized marriages in Oklahoma – license marriages and common-law marriages – and that each requires a statutory divorce. 1 However, there has been and continues to be a third legally valid way to get married and even divorced in Oklahoma: traditional tribal customary marriages or divorces in certain circumstances. Not everyone can be married or divorced in this way, but some are, despite the legal complications that arise from these types of arrangements.

As someone whose practice includes family law throughout state and tribal courts, as well as personal involvement with tribal gatherings and ceremonies, I see a growing number of people who choose this third and valid way to be married. I also hear a growing number of questions and even consternation from family law practitioners and judges about this issue. This article explains the con cept in the context of the history of marriage in Oklahoma and pro vides practice tips for practitioners when they encounter Indigenous people who want to get married or divorced, resolve probate disputes and more in their customary ways.

On the other hand, courts recognize common-law marriage in Oklahoma, which means a license has not been obtained, though the parties intend to be married. As the Oklahoma Supreme Court has explained: A common law marriage is formed when “the minds of the parties meet in consent at the same time.” Some evidence of con sent to enter into a common-law marriage are cohabitation, actions consistent with the relation ship of spouses, recognition by the community of the marital relationship, and declarations by the parties. The person seeking to establish a common-law espousal relationship has the burden to show by clear and convincing the existence of the marriage. 6

THE BASICS OF OKLAHOMA MARRIAGE – FACTS AND FICTION Under Title 43 of the Oklahoma Revised Statutes, the state defines marriage as “a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained or abrogated as provided by law.” 2 A district judge or county court clerk may issue a marriage license. 3 Then, “a formal cere mony” takes place with at least two witnesses and an officiant, usually a judge or a recognized and approved religious leader. 4 After that, the license must be returned to and recorded by the court clerk in a timely manner. 5

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

46 | JANUARY 2026

THE OKLAHOMA BAR JOURNAL