Daniel v. Daniel

2025 UT App 193

THE UTAH COURT OF APPEALS

RAYLYN DANIEL,
Appellant,
v.
SETH DANIEL,
Appellee.

Opinion
No. 20230931-CA
Filed December 26, 2025

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 214402674

Jared L. Bramwell, Attorney for Appellant
Seth Daniel, Appellee Pro Se

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

TENNEY, Judge:

¶1 After 17 years of marriage, Raylyn Daniel and Seth Daniel
divorced in 2015.1 Over the next six years, the two lived together
part-time, cohabited, and held themselves out in public as still
being married. In 2021, Raylyn filed a petition asking the district
court to determine that she and Seth had been in an unsolemnized
marriage during the intervening years. At the close of a bench
trial, however, the district court rejected Raylyn’s request,
concluding that Raylyn had not proven that Seth had consented

1. Because the parties share the same last name, we’ll follow our
usual practice and refer to them by their first names moving
forward, with no disrespect intended by the apparent informality.
Daniel v. Daniel

to a marital relationship. Raylyn now appeals that ruling. For the
reasons set forth below, we affirm.

BACKGROUND 2

¶2 Raylyn and Seth were married in March 1998, and they
divorced in August 2015. For most of their marriage, the couple
lived in Salt Lake City, but after their divorce, Seth briefly moved
to California. While in California, Seth attended a church
congregation for single adults, dated several women, and
otherwise lived as a single man. Raylyn encouraged Seth to date

2. As will be discussed below, the district court heard evidence
during a bench trial about what did and did not occur during the
years in question. The parties agreed on some factual questions,
but they disagreed on many others. Where the district court
resolved the conflicts one way or the other, we’ll recite those facts
in the light most favorable to the district court’s ruling. See
Knowles v. Knowles, 2022 UT App 47, n.2, 509 P.3d 265. Where the
district court did not resolve a particular factual dispute, we’ll
recount the facts that were agreed upon by the parties.
We also note that marriages of the type that are at issue in
this appeal are often referred to as “common law marriages.” But
these kinds of marriages have been a creature of statute in Utah
since 1987. See Utah Code § 81-2-408 (setting forth the current
requirements for such a marriage); Volk v. Vecchi, 2020 UT App 77,
¶ 12, 467 P.3d 872 (discussing the prior history of this statute). As
a result, it’s something of a misnomer to refer to these marriages
as “common law marriages,” so we’ll generally refer to them as
“unsolemnized marriages” in this opinion. That said, we regard
the two terms as being interchangeable. And since the term
“common law marriage” is quite common in both the record and
the caselaw, we’ll leave references to “common law marriage”
untouched to avoid unnecessary bracketing and clutter.

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Daniel v. Daniel

and told him, “[D]o whatever you would do as if you were free
and available.”

¶3 Seth returned to Salt Lake City to spend Thanksgiving 2015
with the family. During that trip, Raylyn initially insisted that the
two sleep in different rooms, stating, “We can’t be together. We’re
divorced.” But the two engaged in sexual intercourse during that
trip, and they also had discussions about maintaining some sort
of relationship moving forward.

¶4 Raylyn and the couple’s five children moved from Salt
Lake City to St. George in the summer of 2016. Seth was the “sole
owner” of the St. George house, but Raylyn paid the mortgage
and utilities. Around this time, Seth also purchased and was the
sole owner of a house in Nampa, Idaho.

¶5 From 2016 to 2021, Seth split his time between St. George
and Nampa, spending months at a time in the two different
locations. The two oldest children later testified that, during the
months when Seth was with the family in St. George, the
relationship between Raylyn and Seth appeared “normal” and
consistent with them still being married. During the same period,
Raylyn and Seth also referred to themselves as husband and wife
to various neighbors, friends, and fellow church members. Raylyn
continued to use Daniel as her surname, later explaining that she
did so because it was “the name that [her] children” have and
because she “was with Seth, and [they] were a family.” Raylyn
and Seth also continued to maintain the same joint bank account
that they had created and used during their marriage.

¶6 During this period, Raylyn repeatedly suggested to Seth
that they should “get remarried,” but when she did, Seth
repeatedly told her no. Raylyn later testified that Seth would
respond to her requests with statements such as, “[N]o, we’re not
quite ready, the timing is not right. No, let’s just wait. It will
happen . . . eventually, but it’s just not the right timing.”

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Daniel v. Daniel

¶7 Raylyn and Seth’s relationship began to worsen in early
2021, and on March 1, 2021, they signed a handwritten document
that was titled “Couples Agreement.” This document laid out
several stipulations regarding the nature of their relationship,
property, and finances. One provision stated that “common law
marriage is not going to ever be an option for Raylyn & Seth” and
that “[a]ny future marriage between them must be by mutual
consent.”

¶8 On July 12, 2021, the two signed a notarized “Contract and
Agreement” (the Contract). At the outset, the Contract stated that
it was intended to establish “the terms of [the parties’] divorce,
property, custody and any and all matters that may be disputed
now or in the future.” The Contract then stated that Raylyn and
Seth had been “legally divorced” in August 2015 and were “not
currently married.” And it then stated:

The parties are entering this contract to ensure that
at this, and any future time, no common law or
statutory marriage can or will ever be created
between them by any court or law. The parties do
not wish to enter any legal statutory, or common
law marriage, and therefore mutually declare that
they are not legally married by the laws of this, or
any state, country or nation, and that they do not
intend any contract, behavior, cohabitation, or any
future action to give effect or authority to any law
or court to ever declare that such a legal or statutory
secular relationship or liability exists between them.

¶9 Raylyn and Seth’s relationship continued to deteriorate,
and in August 2021, Seth called police in Nampa and alleged that
Raylyn had made a “suicidal threat.” When police arrived, Raylyn
told officers that she and Seth “secretly got a divorce 5 years ago”
but that they had “decided to try to make it work.” Raylyn also
told officers that “she wanted to get remarried” but that Seth “did
not.”

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Daniel v. Daniel

¶10 In October 2021, Raylyn filed a petition asking the district
court to determine that she and Seth had been in an unsolemnized
marriage since 2015. In his answer, Seth denied that such a
marriage had been established, and the case proceeded to a bench
trial in August 2023.

¶11 At trial, Raylyn, Seth, two of their children, two of their
children’s friends, and several of Raylyn’s friends and family
members testified. Although Raylyn and Seth disagreed on
many facts, they testified consistently with the facts presented
above.

¶12 In September 2023, the district court issued a written ruling
denying Raylyn’s petition. At the outset of this ruling, the court
expressed its concern over both parties’ “credibility issues,” and
it cited several examples where each party had testified in a
manner that was inconsistent with documented evidence or
testimony from other witnesses. The court thus stated that it was
“not willing to accept anything from either party on face value”
but that it would instead largely base its ruling on the documents
before it, testimony from other witnesses, or facts that had been
agreed upon by both Raylyn and Seth.

¶13 Turning to the statute, the court ruled that Raylyn had
satisfied several of the required elements. In particular, the court
concluded that the parties were of legal age and legally capable of
giving consent, that they had cohabited, and that they had “[held]
themselves out as and [had] acquired a uniform and general
reputation as husband and wife.”

¶14 But the court then concluded that Raylyn had not
proven “mutual consent.” The court observed that mutual
consent is an “essential” element under the statute. The court
then acknowledged caselaw under which a party can establish
consent through such things as joint bank accounts, the purchase
of joint property, sharing a surname, or speaking of each other as
being married in the presence of third parties. See, e.g., Volk v.

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Daniel v. Daniel

Vecchi, 2020 UT App 77, ¶ 27, 467 P.3d 872. And the court
acknowledged that there was some evidence that such things had
occurred here—including the continued use of a joint bank
account, Raylyn’s continued use of the Daniel surname, and the
fact that the two referred to each other as spouses to friends and
family.

¶15 But even with such evidence, the court determined that
Raylyn had not proven mutual consent. Instead, the court
credited the “contrary evidence” showing that Seth had not
consented. The court was particularly persuaded by two things.
First, it pointed to the “contracts [and] the agreements that were
executed by the parties which clearly state[d] that there was no
such relationship.” And second, the court referred to the
testimony showing that Raylyn “had repeatedly asked [Seth] to
remarry her and that he had declined.”

¶16 The court thus concluded that because the statute requires
the parties “to consent to get married, whether it’s a common law
marriage or a solemnized marriage,” and because it couldn’t “find
that there was” such consent, “no common law marriage or
unsolemnized marriage was ever created.” The court accordingly
denied Raylyn’s petition.

ISSUE AND STANDARD OF REVIEW

¶17 Raylyn challenges the district court’s conclusion that she
had not proven that Seth consented to an unsolemnized marriage.
“We review the district court’s interpretation of the common law
marriage statute for correctness, but we review the court’s
findings of fact for clear error and its application of the statute to
those findings for abuse of discretion.” Volk v. Vecchi, 2020 UT App
77, ¶ 9, 467 P.3d 872 (quotation simplified).

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Daniel v. Daniel

ANALYSIS

¶18 The question of whether an unsolemnized marriage was
established is governed by Utah Code section 81-2-408. 3 As set
forth there:

A marriage that is not solemnized according to this
chapter is legal and valid if a court or administrative
order establishes that the marriage arises out of a
contract between two individuals who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized
marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and
obligations; and

(e) . . . hold themselves out as and have acquired a
uniform and general reputation as spouses.

Id. § 81-2-408(1).

¶19 The party who seeks the establishment of an unsolemnized
marriage bears “the burden of proving the elements,” Rivet v.
Hoppie, 2020 UT App 21, ¶ 9, 460 P.3d 1054, and that party must

3. At the time of both the events in question and the district court’s
ruling, the governing statute was Utah Code section 30-1-4.5. In
2024, the Legislature renumbered that statute as Utah Code
section 81-2-408. The Legislature also made some changes to the
statute, but because those changes do not affect any of the
elements we address in this opinion, we’ll cite the current version
for convenience.

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Daniel v. Daniel

do so by “a preponderance of the evidence,” Hansen v. Hansen, 958
P.2d 931, 935 (Utah Ct. App. 1998). While “no single factor is
determinative, . . . each required element must be established by
sufficient evidence.” Volk v. Vecchi, 2020 UT App 77, ¶ 12, 467 P.3d
872 (quotation simplified).

¶20 As noted, the district court ruled that Raylyn had proven
several of the required elements, including that the parties were
of legal age, were legally capable of giving consent, had
cohabited, and had held themselves out as and acquired a
uniform and general reputation as spouses. But even so, the
district court determined that Raylyn had not proven “mutual
consent.”

¶21 As an initial matter, we note that mutual consent is not
listed as one of the enumerated elements in the unsolemnized
marriage statute. See Utah Code § 81-2-408. But our courts have
nevertheless held that it must be proven. In Whyte v. Blair, for
example, our supreme court stated that the statute “requires
general reputation, cohabitation, and assumption of marital
obligations as separate elements in addition to consent.” 885 P.2d
791, 795 (Utah 1994). The court thus held that “the party claiming
the benefit of an unsolemnized marriage” “must” show “that at
some point mutual consent was given.” Id. at 794. In Calsert v.
Estate of Flores, we likewise held that “a party seeking recognition
of an unsolemnized marriage must not only satisfy the five listed
statutory requirements, but must also demonstrate that both
parties consented to the arrangement.” 2020 UT App 102, ¶ 13 n.5,
470 P.3d 464.

¶22 This makes sense. As indicated, the statute states upfront
that an unsolemnized marriage “arises out of a contract between
two individuals who” satisfy the various elements that are then
set forth. Utah Code § 81-2-408(1). This comports with the general
understanding that “marriage is contractual in nature” and is
“based on the mutual consent of the parties.” 23 Williston on
Contracts § 62:26 (4th ed.). Because “it is a basic principle of

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Daniel v. Daniel

contract law that there can be no contract without the mutual
assent of the parties,” Livingston v. Finco Holdings Corp., 2022 UT
App 71, ¶ 14, 513 P.3d 94 (quotation simplified), it naturally
follows that, as with a solemnized marriage, the parties to an
unsolemnized marriage must mutually consent to the
establishment of the marriage.

¶23 This leads to the question of what it is, exactly, that the
mutual consent element requires. In Whyte, our supreme court
explained that each party must “consent[] to be married.” 885
P.2d at 794. The court observed that such a marriage exists when
the parties “have by their prior consent and conduct entered into
a marital relationship,” albeit one that “was not theretofore
formally solemnized or otherwise legally recognized.” Id. at 793.
In this sense, such a marriage exists when the parties
“consensually assumed marital obligations . . . without
solemnization.” Id. at 794. Following this lead, we’ve likewise said
that the evidence must “demonstrate that both parties consented
to the arrangement,” Calsert, 2020 UT App 102, ¶ 20, meaning that
each party “consent[ed] to the rights and responsibilities that
accompany a legally recognized marital relationship,” Volk, 2020 UT
App 77, ¶ 27 (emphasis added, quotation otherwise simplified).

¶24 Our decision in Hansen bears some similarity to the facts of
this case and is illustrative of how the consent element plays out.
There, the parties (who were referred to in our opinion as “Mr.
Hansen” and “Ms. Hansen”) “had been married and divorced
prior to” a subsequent period of “cohabitation.” 958 P.2d at 933.
“During that cohabitation period, Mr. and Ms. Hansen had, at
least for a time, held themselves out to some as being married.”
Id. (quotation simplified). But this was not uniform—they “did
not refer to each other as husband and wife in public and their
closest friends did not believe the two were married.” Id. And of
some note, “Mr. Hansen asked Ms. Hansen several times to
formally remarry him” during this period, but “Ms. Hansen
repeatedly rejected Mr. Hansen’s proposals.” Id.

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Daniel v. Daniel

¶25 Mr. Hansen subsequently asked the court to determine
that an unsolemnized marriage existed. Id. But the district
court rejected this request, in part, because of its conclusion
that Ms. Hansen had not “consented to the existence of a
marital relationship after the previous divorce.” Id. On appeal,
we affirmed that conclusion. In doing so, we regarded it
as persuasive evidence that “Ms. Hansen [had] repeatedly
rejected Mr. Hansen’s requests to formally remarry.” Id. at 936.
In our view, this supported the district court’s conclusion that
“Ms. Hansen did not want or consent to the rights and
responsibilities that accompany a legally recognized marital
relationship.” Id.

¶26 In light of this precedent, we see no reversible error in the
district court’s conclusion that Raylyn did not prove that there
was consent in this case. While the district court found that
Raylyn’s testimony was generally not credible, it specifically did
credit her testimony that, during the 2015 to 2021 period, Raylyn
had “repeatedly asked [Seth] to remarry her and that he had
declined.” And reviewing the trial transcript ourselves, we note
that Raylyn testified that she asked Seth several times if he wanted
to get married and that Seth would “would always tell [her] no,”
and we further note that she testified that Seth said some version
of this “multiple times.” Moreover, we also note that, during the
August 2021 police incident, Raylyn told officers that she and Seth
“secretly got a divorce 5 years ago” and that while “she wanted
to get remarried,” Seth “did not.”

¶27 Like the district court below, we regard this as fairly
conclusive proof that while Seth may have been willing to do such
things as cohabit with Raylyn, continue to maintain a joint bank
account, and even refer to her as his wife to friends and family, he
was expressly unwilling to “consent[] to be married,” Whyte, 885
P.2d at 794, or assume “the rights and responsibilities that
accompany a legally recognized marital relationship,” Volk, 2020
UT App 77, ¶ 27 (quotation simplified).

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Daniel v. Daniel

¶28 This conclusion is also corroborated by the two documents
that the parties signed in 2021. As discussed, Raylyn and Seth
signed a “Couples Agreement” in March 2021. This document
stated that “common law marriage is not going to ever be an
option for Raylyn & Seth” and that “[a]ny future marriage
between them must be by mutual consent.” In July 2021, Raylyn
and Seth then signed and notarized the Contract. This document
stated that Raylyn and Seth were “not currently married”; that “at
this, and any future time, no common law or statutory marriage
can or will ever be created between them by any court or law”;
and that Raylyn and Seth did “not wish to enter any legal
statutory, or common law marriage, and therefore mutually
declare that they are not legally married.” This, too, suggests that
Seth (and, indeed, Raylyn as well) had not consented at that time
to the establishment of a marital relationship.

¶29 Raylyn nevertheless pushes back on several fronts. But we
find none of them persuasive.

¶30 First, Raylyn points out that consent may be proven
circumstantially, such as by the “maintenance of joint banking
and credit accounts,” “the sharing of a spouse’s surname by the
other spouse,” and “speaking of each other in the presence of
third parties as being married.” Volk, 2020 UT App 77, ¶ 27
(quotation simplified). And Raylyn then points to evidence
presented at trial (and accepted by the district court) showing that
many of these things happened here.

¶31 This is all true enough, and in some or perhaps many cases,
such evidence may be enough to persuade a court that both
parties did consent to the establishment of a marital relationship.
But what matters here is that there was also evidence showing that
the subject of marriage repeatedly came up and that when it did,
Seth repeatedly told Raylyn that he was unwilling to remarry her.
The district court accepted and credited this evidence, and it
naturally follows from this evidence that Seth was not agreeing to

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assume “the rights and responsibilities that accompany a legally
recognized marital relationship.” Id. (quotation simplified).

¶32 Second, Raylyn challenges the court’s reliance on the two
agreements that she signed in 2021. In her view, these were only
forward-looking, and they were accordingly irrelevant to the
question of whether she and Seth had previously agreed to the
establishment of a marital relationship during the 2015 to 2021
period. But this claim is at odds with the fairly strident language
that was used in the documents themselves. The Contract, for
example, included language stating that Raylyn and Seth were
“not currently married,” that they wanted to “mutually declare
that they [were] not legally married,” and that no “common law
or statutory marriage” could be created “at this” or “any future
time.” (Emphases added.) Since the parties were expressly
disclaiming the possibility of creating an unsolemnized marriage
“at this” time, then, like the district court, we think these
documents are inconsistent with the assertion that Raylyn and
Seth had previously agreed to “a marital relationship,” albeit one
that had simply not been “formally solemnized.” Whyte, 885 P.2d
at 793. 4

¶33 Third, Raylyn claims that when she acknowledged that
Seth had repeatedly told her that he did not want to get remarried

4. At trial, Raylyn claimed that the Contract was a “fraudulent
document” and that she had “never” seen it before. But when
pressed on the matter, Raylyn agreed that her signature was on
the document. And again, in its ruling, the district court found
that Raylyn was an unreliable witness generally, and it more
particularly found that her testimony that she had not seen or
signed the Contract was not credible. While Raylyn challenges
this conclusion in her brief, she has not adequately briefed any
such argument. In any event, on matters of credibility, “we defer
to the district court.” In re Discipline of Steffensen, 2018 UT 53, ¶ 32,
428 P.3d 1104. We are not persuaded that the court committed any
error in accepting and relying on that document.

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Daniel v. Daniel

(i.e., in both her trial testimony and in her statement to officers in
August 2021), she only meant that he was saying no to a
solemnized marriage. But in many places at trial, Raylyn’s
testimony was not at all this specific. In one relevant exchange, for
example, Raylyn acknowledged that she “kept asking [Seth] to
marry” her and that he “would always tell [her] no.” These
refusals from Seth seem to have been rejections to the idea of
marriage at all, whether solemnized or not. 5 And in any event, we
certainly see no error in the district court’s decision to interpret
them that way.

¶34 Finally, Raylyn challenges two evidentiary rulings that the
court made at trial: namely, (i) the court sustained a relevancy
objection to Raylyn’s attempt to question Seth about some emails
from January 2021 that purportedly contained some discussion of
whether they had an unsolemnized marriage, and (ii) the court

5. From our review of the transcript, there’s one potential
exception. At trial, Raylyn testified that, during the Thanksgiving
holiday in 2015, the two agreed that they would fix the “mistake”
of getting divorced by keeping things “the same as they had been
before,” “not tell anyone that that divorce had ever happened,”
and eventually “legalize” their relationship. Raylyn then
responded affirmatively to a question from her counsel about
whether she and Seth had agreed “to remain married together.”
But again, as noted, the district court found that Raylyn
was not a credible witness. And while it credited some particular
portions of her testimony—including, notably, her testimony that
Seth had repeatedly said he did not want to get remarried—it
never credited Raylyn’s account of the alleged Thanksgiving
agreement. We accordingly are not persuaded that we can rely on
this passage from her testimony, much less that it is sufficient to
overcome the other proof of Seth’s nonconsent that is discussed
above.

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Daniel v. Daniel

also sustained a relevancy objection to evidence that Seth was not
paying child support from 2015 to 2021.6

¶35 But on the record before us, we’re not persuaded that, even
if these rulings were somehow erroneous, Raylyn was prejudiced
in any meaningful way. The January 2021 emails are not in the
record—the court sustained the objection before Raylyn tried
submitting them, and Raylyn has not sought to supplement the
appellate record to include them. As a result, we have no way to
evaluate their contents. In any event, even if it were true that the
parties were discussing the possibility of an unsolemnized
marriage in January 2021, that discussion predated the two
documents discussed above in which they stated that there was
no such marriage at that time. And again, such a discussion is also
at odds with Seth’s repeated refusals over the years to remarry
Raylyn. As for the child support issue, even if it were true that
Seth was not paying child support during the intervening years,
this is several inferential steps away from proving that Seth had
affirmatively agreed to an unsolemnized marriage. Even if this
was relevant, we regard its probative value in the face of the other
evidence as being marginal at best.

¶36 In short, our decision to affirm the district court’s decision
is ultimately holistic as opposed to granular. As with any other
fact-laden question, the district court was empowered to view the
evidence that was before it collectively. And because Raylyn was
“the party claiming the benefit of an unsolemnized marriage,”
Raylyn had the burden of proving, by a preponderance of the
evidence, “that at some point mutual consent was given.” Whyte,
885 P.2d at 794. As discussed, Raylyn did point to some evidence
that could have circumstantially suggested that there had been
mutual consent. But there was also direct evidence to the contrary,
including Seth’s repeated refusals to marry Raylyn, as well as the

6. In Raylyn’s view, Seth’s failure to pay child support showed
that he thought they were still married and was therefore not
required to follow the dictates of their divorce decree.

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two documents that expressly disclaimed the existence of either a
legally binding marital relationship in general or an
unsolemnized marriage in particular.

¶37 In light of all this, we see no basis for overturning the
district court’s conclusion that Raylyn did not prove that Seth had
“consented to be married,” id., or that he had “consent[ed] to the
rights and responsibilities that accompany a legally recognized
marital relationship,” Volk, 2020 UT App 77, ¶ 27 (quotation
simplified). We therefore affirm the court’s rejection of Raylyn’s
petition on this basis. 7

7. In her brief, Raylyn also challenges several of the district court’s
subsidiary rulings (mostly evidentiary in nature and some that
were about credibility) that related to some of the enumerated
elements from the unsolemnized marriage statute. But as noted,
Raylyn prevailed on those elements, so she’s essentially faulting
the district court for concluding that she should have prevailed on
those elements by even more proof than she already did. We fail
to see how any such error could have been harmful. Regardless,
as indicated, Raylyn was required to prove “each required
element . . . by sufficient evidence,” Volk, 2020 UT App 77, ¶ 12,
and mutual consent is one of the required elements to establish an
unsolemnized marriage. Because we affirm the district court’s
conclusion that Raylyn did not prove mutual consent, we have no
need to address these additional arguments.
On the issue of consent, we also note that there is an
interesting question lurking in the shadows of all this. As noted,
Whyte v. Blair held that there must be mutual “consent[] to be
married.” 885 P.2d 791, 794 (Utah 1994). But it also suggested that
what’s at issue is whether the parties, “by their prior consent and
conduct[,] entered into a marital relationship, although it was not
theretofore formally solemnized or otherwise legally recognized.”
Id. at 793 (emphasis added). In Calsert v. Estate of Flores, we held
that the petitioner must “demonstrate that both parties consented
(continued…)

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CONCLUSION

¶38 Raylyn has not persuaded us that the court committed any
reversible error with respect to its rejection of her petition for the
establishment of an unsolemnized marriage. We therefore affirm.

to the arrangement,” 2020 UT App 102, ¶ 20, 470 P.3d 464 (emphasis
added), and in Volk, we held that the question is whether the
parties “consent[ed] to the rights and responsibilities that
accompany a legally recognized marital relationship,” 2020 UT
App 77, ¶ 27 (emphasis added, quotation otherwise simplified).
We think it’s at least conceptually possible that there could
be a case in which the parties agreed to assume all the “rights and
responsibilities” of a marriage and also did the various other
things required by the statute (such as cohabiting and holding
themselves out as being married), but they never explicitly
discussed whether they were intending or consenting to establish
an informal or unsolemnized marriage. In other words, it’s at least
possible, we think, that when Whyte referred to “consent[] to be
married,” 885 P.2d at 794, this included consent to “a marital
relationship,” id. at 793, which could mean something more like a
marriage-like relationship in the absence of any discussion of
marriage itself. And this possibility may well be why the cases
sometimes allow consent to be proven through circumstantial
evidence. See, e.g., id. at 795; Volk, 2020 UT App 77, ¶ 27.
But as discussed, that’s not the case before us here. Again,
the district court accepted evidence showing that Seth pointedly
did not want to be married, in any way, and that he expressly and
repeatedly told Raylyn as much. So what our decision here should
be understood to mean is that in a case in which there was proof
that one party expressly disavowed any intention to be married,
whether solemnized or not, that will likely be enough to defeat a
request for an unsolemnized marriage. But we think there’s at
least some open question as to what would happen if the parties
never discussed marriage at all but nevertheless did agree to a
marriage-like relationship.

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