dissenting:
The majority opinion would reverse the order of the lower court, which declared an attempted common law marriage *527void and adjudged Appellant to be a dependent child based upon evidence of the Appellant’s incorrigibility and her refusal to submit to parental control. Since I agree with the majority that our responsibility is to interpret and apply the law, and since I find that the facts appearing on the record in this juvenile proceeding clearly support the findings and disposition of the trial judge, I must respectfully dissent.
Although this matter arises as a dependency proceeding, and although the lower court’s order adjudging Appellant dependent and further ordering her detention in a foster home is the ultimate decision for review on this appeal, I note that Appellant has not directly challenged the trial judge’s findings as to incorrigibility either in her brief or on oral argument before this court.1 I will assume for purposes of this dissent that Appellant does not challenge the findings of the lower court as to her behavior up to the time of the bizarre ceremony by which Appellant seeks to escape the jurisdiction of the Erie County Common Pleas Court, Juvenile Division.
The learned trial judge is perfectly correct in observing that this case presents a troubling, but fortunately rare, situation. The facts appear from the record as follows.
Melissa Miller, Appellant, was born October 15, 1966, and had not yet reached her fourteenth birthday when the events leading up to the dependency hearing began to unfold. Edward Christoph, a professional employee of the School District of Erie, first knew Melissa about two years prior to the time of his testimony in these proceedings on August 4, 1981. Melissa was a student of Christoph’s in the eighth grade at the Wilson School where Christoph was employed to teach English. Unfortunately, Christoph did *528not limit his contacts with the minor Appellant to matters properly included in an eighth grade English class curriculum or directed towards the improvement of her formal public school education.
In October or November of 1980, Melissa’s mother discovered two letters on the kitchen table of her home sent by Christoph to Melissa. The letters contained phrases such as, “What we had was beautiful”, “You gave yourself fully”, and “I love you”. When confronted with the letters, Melissa first denied any knowledge of them and then admitted that they had been written to her by Christoph. The mother immediately went to her sister’s house and discussed the matter with her sister and brother-in-law. When she later returned to her residence, the letters were missing from her purse. The mother promptly brought the matter to the attention of the Erie public school officials, who took steps to transfer Melissa out of Christoph’s class and expressly forbade the teacher, in writing, to have any contact whatsoever with Melissa. Unbeknownst to the mother or school officials, Christoph continued to see the minor Appellant. While admitting to the hearing judge that he had received a letter from his school principal saying that at no time was he to talk to, or have any dealings with, Melissa, he claimed to have honored that order, if at all, only during school hours since, in his view, “that’s as far as the school district has any rights.”
Melissa’s mother testified that her problems with control of Melissa began early in the fall of 1980. Melissa would sneak out of the house through her bedroom window in the early morning hours and be away for three or four hours. At the dependency hearing, it was established through Melissa’s testimony that a meretricious relationship had begun between Melissa and Christoph as early as November 1980, when Christoph, who was married at the time, would have been at least 35 years old and Appellant barely 14. The troubles which the mother was experiencing with Melissa continued, as hindsight would lead us to suspect, until Melissa ran away from her mother’s home on April 10, 1981. *529Christoph had secured a divorce from his wife on December 8,1980 and took custody of his two children who, at the time of Melissa’s dependency hearing, were only 12 and 13 years of age.
In April 1981, in an attempt to gain control over her daughter, Melissa’s mother had Melissa placed in the custody of her aunt and uncle through the Children’s Services of Erie County. While in their custody the aunt became concerned when, one day, Melissa had not traveled to the place to which she had been given permission. The aunt notified the mother who, while out searching for Melissa, observed her daughter coming out the front door of Christoph’s home. The mother entered the home and confronted Christoph, who was in the residence with his 13-year-old daughter. As a result of that incident, the mother signed a voluntary entrustment agreement by which Melissa was placed in a foster home. After a brief stay, Melissa was returned to her mother’s home.
Early on the morning of July 17, 1981, Melissa again slipped out of her home, through a bedroom window, and rendezvoused with a 13-year-old friend. They walked to Rosary School where Christoph picked the two minor girls up, following a telephone call by Melissa to him. Christoph transported both children to the residence of his sister and brother-in-law where, at 3:00 a.m., in the presence of the sister, brother-in-law and the 13-year-old friend of Melissa, Christoph and Melissa exchanged words which we are asked to dignify by finding them to be marriage vows. Within thirty minutes, Melissa left the home of Christoph’s sister and, according to the sister, returned, alone, to her mother’s home. At 5:00 a. m. the same morning, Melissa returned, by herself, and remained at the home of Christoph’s sister who left for work at about 8:00 a. m. leaving Melissa alone in the residence. The following day, a dependency petition was filed by the mother and Melissa was picked up by the Erie police and removed to the James Cooney Foster Home. A detention hearing was held two days later and Melissa was remanded back to the Foster Home, pending the dependency hearing on August 4, 1981.
*530While it is clear from the record that Christoph had sexual relations with the 14-year-old Melissa on more than one occasion both during and after his marriage to another person, it is far from clear that either Melissa or Christoph sought to “consummate” their 3:00 a. m. “marriage” or even expressed any intention of assuming any relationship as husband and wife, prior to the discovery by the mother of this last instance of incorrigibility and the arrest of Melissa by the Erie police following the detention order of July 22, 1981.
In December, 1980, following his divorce from his wife under the statutory laws of this Commonwealth, Christoph consulted with his divorce lawyer about the elements of common law marriage in Pennsylvania. He again consulted with his lawyer about common law marriage “the following day after we [Melissa and he] were married to make sure that I had the instructions correct.” The Erie police had talked to Christoph “several times from April until July” 1981 about his relationship with Melissa and his alleged corruption of the morals of Melissa. Although Christoph testified that two weeks before his attempted marriage he was assured that no charges would be brought against him, three days before the 3:00 a. m. “marriage” he told his sister that he believed his marrying Melissa would result in his avoiding criminal prosecution.
On July 16,1981, Melissa had given a written statement to Detective Sergeant William Serafini of the Erie police which presumably detailed her sexual relationship with Christoph going back at least as far as November 1980. Melissa never discussed this statement with Christoph. Christoph never discussed with Melissa his consultations with his attorney regarding common law marriage and avoidance of prosecution other than to provide Melissa with “what you had to say [to perfect a common law marriage] and that’s it”.
It is on these facts that we are asked to overturn the lower court’s finding that the 3:00 a. m. colloquy between a 14-year-old girl and a 36-year-old man did not rise to the stature of a valid common law marriage.
*531The majority focuses on Gower Estate, 445 Pa. 554, 284 A.2d 742 (1971) in concluding that once the intention to marry is established, one may not consider motivation in evaluating whether a valid common law marriage has been consummated. I view the facts in Gower to be at great variance with the facts in the instant case. In Gower, our supreme court was reviewing the lower court’s orders confirming an auditor’s recommendations that denied claims by the appellant seeking to elect to take against the will and secure a family exemption in his alleged wife’s estate. The appellant and the decedent had begun living together in 1930, while decedent remained married to her first spouse. Two years later, the decedent had secured a divorce, and from 1932 to 1942 they [appellant and decedent] continued to live together. In 1942, both of them had executed a Selective Service form for the purpose of establishing marriage status, which status, if accepted by the Selective Service Board, would result in a deferred classification under the military draft laws. The parties continued to live together another twenty years following the execution of the Selective Service form and until decedent’s death in 1962. The supreme court, in Gower, found the Selective Service form to contain sufficient language in the present tense, uttered with a view and for the purpose of establishing the relationship of husband and wife, to overcome the presumption of invalidity arising from the meretricious relationship, the obstacle of which had been removed some ten years earlier by virtue of decedent’s divorce. The Gower decision, which involved the review of a relationship lasting over thirty years following the wife’s divorce, affords little support, in my view, for the decision of the majority in the instant case.
This is so because in Gower one has no difficulty in finding not only the words in praesenti but, of equal importance, the clear intention and purpose of establishing the relationship of husband and wife. I agree with the majority that, in the instant appeal, Melissa and Christoph satisfied the law’s requirement that words in praesenti be exchanged in order to create a common law marriage. This is not *532surprising, given the fact that Christoph had consulted with his lawyer before the ceremony, and again the day following, to make sure his “instructions” had been correct. Marriage, even common law, requires more than that, however.
The lower court correctly listed the three elements necessary for judicial recognition of a common law marriage: (1) express agreement by the parties; (2) by words in praesenti; (3) uttered with a view and for the purpose of establishing the relationship of husband and wife. Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). And a meretricious relationship, as in the instant case, is presumed to continue until a change to a legal status is proved by clear and convincing evidence. Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346, 348 (1946); Wagner v. Wagner, 152 Pa.Super.Ct. 4, 8, 30 A.2d 659, 661 (1943),
An examination of the facts in the record below leaves me unconvinced that the minor Appellant, Melissa, has support for either the first or the third element set forth above. On the issue of the express agreement between the parties, the record is devoid of any testimony concerning meaningful discussions or conversations between the parties regarding the marriage prior to the ceremony itself. The record does establish that Melissa had conversations with the police about her illicit sexual relationship with Christoph and kept those conversations from Christoph right up to the time of the dependency hearing. The record further establishes that Christoph had extended conversations with his counsel about marriage but, according to his intended child bride, he only shared with her the magic words necessary to complete the charade. This writer need not reach the serious question of whether an otherwise incorrigible minor possesses the capacity to enter into a contract of marriage, since the record does not, in my view, contain any manifestation of a mutual agreement freely entered into between the parties.
I am equally unconvinced that the Appellant can establish by clear and convincing evidence that the words were uttered with a view and for the purpose of establishing the relationship of husband and wife. As the majority opinion *533cites from the transcript, Christoph indicated that his intention, at the time of the marriage was “to take [Melissa] home to live with me as my wife.” Yet, immediately following the 3:00 a. m. incident, Melissa returned to her mother’s home, where she stayed without her “new husband” and returned later that morning, not to her “new husband’s” abode, but to the home of one of the “witnesses” to the incident. While I have no difficulty in accepting the rule that a contract made by words in praesenti may amount to a valid marriage even though not consummated by cohabitation, the reviewing court may examine all the facts in a case in seeking to determine what the true intent and purpose of the parties may have been at the time of the purported marriage agreement.
Where, as here, a thirty-six-year-old man picks up an incorrigible minor girl of tender years at 3:00 a. m. in the morning, after having sought legal advice on means by which he might avoid prosecution for corrupting the morals of a minor, and where, immediately following a ceremony, with witnesses, the parties go their respective ways, it is impossible for me to conclude that the furtive ceremony was entered into with a view and for the purpose of establishing the relationship of husband and wife.
In reaching my conclusion that Appellant has not established by clear and convincing evidence that the words uttered early that morning were pronounced with the sincere and solemn view and for the purpose of establishing the relationship of husband and wife, I have attempted to focus on both the actions and the words of the parties. Every teacher employed to teach in the public schools of this Commonwealth must be a person of good moral character. Public School Code of 1949, Act of March 10, 1949, P.L. 30, art. XI, § 1109, 24 P.S. § 11-1109. Both Melissa’s mother and the Erie public school officials had every right to expect that the fiduciary relationship between the school and Melissa’s family would not be violated. In fact, however, Christoph used the mandatory attendance provisions of our school laws and his position as a teacher to prey upon one of his *534charges, and when ordered to cease and desist from his advances to Melissa, he took the position that what he did with one of his fourteen-year-old pupils after school hours was the proper concern of neither the school officials nor the child’s mother. Given his attitude and conception of his relationship to his employer and the young charges entrusted to his care, I am not prepared to conclude that his mere recitation of five or six words, spewed forth while he was fully aware of potential criminal charges, constituted the kind of bona fide purpose or intention to enter into a lawful marriage which this court must recognize.2 Neither the majority opinion nor the briefs of the multiple appellants refer me to any case law which holds otherwise.
I would agree with the majority that for this court to seek to abolish the doctrine of common law marriage would be an abuse of judicial power. Recognizing the proper role of the legislature in this area, however, does not require us to abdicate our responsibility in deciding cases which reach us sui generis. And, as Gower Estate, supra, this case is, indeed sui generis.
More than forty years ago, this court stated that:
The law of Pennsylvania recognizes common law marriages. But they are a fruitful source of perjury and *535fraud, and, in consequence, they are to be tolerated, not encouraged; the professed contract should be examined with great scrutiny, and it should plainly appear that there was an actual agreement entered into, then and there, to form the legal relation of husband and wife: .... [citation omitted; emphasis in original].
Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super.Ct. 541, 551, 345 A.2d 914, 918 (1975), quoting Baker v. Mitchell, 143 Pa.Super.Ct. 50, 54, 17 A.2d 738, 741 (1941).
Whether one person has been legally married to another is not a pure question of fact. It is a mixed question of fact and law. Baker v. Mitchell, 143 Pa.Super.Ct. at 55, 17 A.2d at 741. We know that a license to marry could not be issued to Melissa on the facts of this case unless a judge of the orphans’ court should decide that it is to the best interest of the Appellant and should authorize the clerk of the orphans’ court to issue the license. Act of August 22,1953, P.L. 1344, § 5, 48 P.S. § 1-5(b). I am not prepared to accept that the legislature’s preservation of common law marriage in Pennsylvania had included in its purposes the desire to permit Christoph in this case to accomplish, at 3:00 a. m. in the morning, that which he did not, and would not, submit to the courts, whose laws he now seeks to use, in the light of day.
I find the words of Mr. Justice Kephart, speaking for our supreme court in Stevenson’s Estate, 272 Pa. 291, 296, 116 A. 162, 164 (1922) applicable in the instant case:
“Marriage exists not only for the happiness of the parties, but for the welfare of society. It is the most important engagement that man and woman can enter into. It is the basis of civilized society, of the home, of the family, of sound morals, and of the domestic affection.” When it is attempted to establish marriage without the usual formalities, we should examine the professed contract with great scrutiny, and be entirely satisfied this solemn undertaking has been entered into by the voluntary assent of both parties.
It is precisely because I view a marriage without civil or religious ceremony as still valid under the common law of *536Pennsylvania that I feel compelled to resist what, in this case, constituted a mockery of this respected institution. The question here is whether we may give effect to mere words in praesenti where the surrounding proofs of marriage are, at best, questionable. We are not faced here with the typical situation found in the prior cases involving orphans’ court or workmen’s compensation disputes where a review of alleged cohabitation or reputation evidence existing over a period of months or years might assist the court in determining the issue. Here, the so-called marriage had existed for less than forty-eight hours before called to the attention of the proper authorities. We therefore must look at the activities of the parties up to the time of the ceremony, and immediately following, to ascertain the purpose of establishing the relationship. When this is done, I have no difficulty in concluding that Melissa and Christoph were never married in the eyes of the law.
The institution of marriage has become fragile enough in modern times without this court accelerating its decline and fall by sanctioning the actions of the parties in this case. Our ancestors could not have conceived that a concept born of the exigencies of pioneer life would one day be used to attempt to thwart the purposes of the Commonwealth in preserving the unity of the family whenever possible and in providing for the care, protection, and wholesome mental and physical development of children. The Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6301(b).
In this case, the distinguished lower court judge had before him a petition for dependency arising from the alleged incorrigibility of the minor Appellant. The record is clear that Appellant committed specific acts of habitual disobedience of the reasonable and lawful commands of her mother and her aunt. The lower court found her to be in need of care, treatment or supervision.
But for Appellant’s final act of disobedience involving her early morning flight and subsequent return to her mother’s home, this case would not be before this court on appeal.
*537The alleged marriage was raised as a bar to the court’s authority to proceed with the dependency petition. It was therefore incumbent upon the minor respondent to establish through clear and convincing evidence that all of the elements of a valid common law marriage were present. While the lower court may have unnecessarily focused on Christoph’s intent, which the lower court found to be fraudulent, I cannot say that the court abused its discretion in failing to find a valid marriage which might have thereby prevented the court from proceeding further. In my view, the facts before the lower court amply support a finding that the purpose of the surreptitious ceremony was something other than to establish the solemn and permanent relationship of husband and wife. The marriage, which from the record does not appear to have been confirmed by cohabitation, is void. Melissa and Christoph were never married in the eyes of the law.
The order of the lower court adjudging the minor Appellant to be dependent and further prohibiting contact in any manner between Appellant and Edward Christoph until further order of the lower court should be affirmed.
. In her Reasons for Appeal, filed September 11, 1981 pursuant to Pa.R.AP. 1925(b), Appellant sets forth three reasons for the appeal; (1) the Master erred in finding the juvenile should be detained in a foster home, when a valid common law marriage was conclusively shown; (2) the Court erred in voiding the marriage since only the parties may seek annulment under the New Divorce Act; and (3) the Court erred in finding the juvenile dependent based on incorrigibility since responsibilities to a husband are “greater than” the legal commands of a parent.
. Included in the record transmitted to this court on this appeal is a Petition to Stay Prosecution, filed September 30, 1981 in the lower court on behalf of Edward Christoph. From the Petition, it would appear that a criminal complaint was filed against Christoph on or about August 24, 1981 charging two counts of corruption of minors. A copy of the complaint is attached to the Petition, and alleges, inter alia, that Christoph had, on August 18, 1981 received a copy of the lower court’s order of August 4, 1981 prohibiting contact between the minor Appellant and Christoph and that, thereafter, Christoph “did [on 8-19-81 & 8-21, 8-22-81] have the aforesaid minor in his vehicle and did have physical contact with her according to the minor. Accused also did attempt, on the 2nd occasion, assist the minor in attempting to flee the jurisdidtion [sic] and leave her foster home placement in Corry, being found together in his vehicle by Corry City Police with personal possessions packed and gathered.” The Petition to Stay Prosecution was refused by the Honorable Fred P. Anthony on September 30, 1981. We note that Christoph appeared as a witness, with counsel, at the August 4, 1981 dependency hearing, at the conclusion of which Judge Anthony issued his order barring contact between the parties until further order of court.