What You Should Know About Common Law Marriage
Common law marriage, once a common practice in many areas, was a means through which couples could gain legal recognition of their relationship without a formal ceremony, license, or other state authorities. Through this manner of cohabitation, couples would come to be considered married under the law, particularly after a certain period of time, and therefore gain the rights and responsibilities that came with marriage as a result of their cohabitation.
Joint property, obligations, support, and legal representation were all part of the deal , but these are not the only considerations in regard to marriage that apply — there are also societal and cultural concerns, as well, that are granted by the simple act of marriage.
In New York State, however, common law marriages have not been legally recognized since 1933 — though some couples have tried to assert their rights as married couples in boroughs that allowed their unions, and New York did recognize common law marriages under certain circumstances until 2012 when the practice was banned.
Common Law Marriage Laws
Common law marriage – a requirement that a couple hold themselves out as being married, cohabitate, and in some states have sexual relations in order to be found to be married in the eyes of the law – is not recognized in New York State. N.Y. Dom. Rel. Law § 10. It is abolished by statute which provides that any marriage entered into without a license is void and unenforceable. There is no statute abolishing common law marriage that specifically addresses whether it was married couples, those holding themselves out as married, but instead abrogates all common law marriage retroactively.
As a result, all marriages deemed to have been common law marriages in New York prior to April 29, 1933, are recognized, but no new marriages can be established in New York. People ex rel. Krause v. Nelson, 88 N.E.2d 787 (N.Y. 1949). (Krause). As a result, whether a couple who held themselves out as married as of April 29, 1933 with no other evidence of a legal marriage may be a common law married couple in New York.
The New York Court of Appeals, in Krause, stated:
While the Statute precludes the imposition on the Courts of the burden of distinguishing between those common law marriages which were and those which were not valid, it does not prevent the respondent to question the validity of a marriage upon which the petitioner bases her claim. This is a privilege which all persons adversely affected by a declared nullity may invoke and we see no sound reason why a respondent, as the proponent of the claim, should not be able to point to it to defeat the petitioner’s claim. If respondent establishes that the member of the legal profession who invokes the Statute continued after its enactment to engage in a course of conduct inconsistent with recognition of a common law marriage, that conduct may be relied upon by the respondent to show that the petitioner has failed to establish that she and the decedent were married. Certainly what an New York attorney thought and did before April 29, 1933 says something about the nature of the relationship between the parties and that there was no intent to be married before that date when they held themselves out as married.
Recognition of Out-of-State Common Law Marriages and Exceptions
New York State does not recognize common-law marriages entered into within the State, but pursuant to Domestic Relations Law §11, New York must recognize a common law marriage which has been entered into outside the State if such marriage may be considered valid under the laws of other jurisdictions. However, there are certain exceptions found within the statute that may prohibit the recognition of an out-of-state common law marriage. Those exceptions include:
A. If either or both of the parties to such a marriage is a convicted felon in this state, the marriage is void in New York (DRL §11(4)).
B. If either or both of the parties lack the capacity to consent to a marriage because he or she is mentally incapacitated at the time the alleged common law marriage took place, or because a party is a natural offspring of an ancestor of an enslaved African, or is a substantially direct descendant of such offspring, such party lacks capacity to consent to a marriage (DRL §11(5)).
C. In order to circumvent the provisions of DRL §11(4) or (5), the parties may enter a common law marriage in a jurisdiction in which non-possibility of marriage is not a prohibition to validity of marriage (DRL §11(6)).
D. In any objected-to divorce proceeding or proceeding for separate maintenance or partition commenced by a party to a common law marriage neither party may be granted a judgment of absolute divorce and no separation or other award of the court may be made unless the party has established by clear and convincing evidence the existence of the common law marriage (DRL §11(7)).
What It Means For Couples Who Aren’t Legally Married
Married and unmarried couples need to be aware of the practical legal implications of their status. While a host of laws and protections are extended to married and other legally recognized couples, few such protections are extended to non-married couples. For example, prove or establish the existence of a marriage is relatively easy. Merely showing a marriage license is generally sufficient proof of a valid marriage. For purposes of establishing the existence of a common law marriage, however, burden rests on the party asserting the existence of such marriage to prove by "clear and convincing evidence" the elements of a valid marriage, a burden that is much harder to overcome. Further, those who are merely cohabiting may have few (if any) legal remedies to protect them and their assets if the relationship dissolves. The following list of practical and legal implications of a common law marriage illustrates why it is prudent to consult with an attorney before deciding to live with someone outside of marriage.
In divorce court, the law favors equitably distributing property acquired during a marriage; in cohabitation agreements, parties can typically agree to how property will be divided. Property acquired by one party during marriage is presumed marital property . Property acquired before marriage, or during marriage through gift, devise or descent is presumed to be separate property. The value of separately owned property is not subject to equitable distribution, although the appreciation in value of separate property may be. The law entitles a surviving spouse to receive property from the deceased spouse’s estate; the law does not entitle cohabiting partners to property acquired by their partner either before or during the relationship. The law grants certain inheritance rights to a spouse of a decedent. Cohabiting partners have no rights, nor may they bring an action for wrongful death, except in limited circumstances where the decedent is guilty of some form of wrongdoing. The law entitles a divorced custodial parent to collect support from the non-custodial parent to help pay for the child’s expenses. The law does not entitle unmarried parents to collect support from the non-custodial parent. An agreement to provide support for a child must be in writing to be enforceable under New York law, except when the non-custodial parent pays support voluntarily and becomes the de facto parent of the child. Cohabiting parents do not have any greater right to visitation than does a stranger. Courts will consider the best interest of a child when determining visitation.
Path to Legally Recognized Marriage in New York
Legal requirements for entering into a marriage vary from state to state, and New York is no exception. In this state, the legal requirements are straightforward and are set forth in New York Domestic Relations Law §§ 5 and 6. Pursuant to those statutes, a license must be obtained from any town, village or city clerk’s office and may be issued after an applicant provides certain information including their name, place of birth, residence and age; and provides the consent of parent(s) for anyone under the age of eighteen (18), proof of terminating any previous marriages, and information regarding name changes. Once an applicant has obtained a license and has waited twenty-four (24) hours, it becomes effective for the next sixty (60) days. A marriage license is generally valid in any county in New York State and can be used in a non-judicial ceremony or religious ceremony. Finally, a completed certificate of marriage must be filed within five (5) days of the ceremony with the office that issued the marriage license. The fee for a marriage license is at the discretion of the particular town, city or village clerk’s office.
The Value of Seeking Professional Legal Assistance
When it comes to determining the marital status of a relationship in New York State, couples in a domestic partnership or those unsure of the legality of their bond should seek legal advice from an experienced attorney. In order to be considered a marriage, a couple’s relationship must be recognized by law. However, in a domestic partnership or common law arrangement, the law is not so clear, and clarity is vital for the future of a couple’s financial and parenting interests .
Obtaining the assistance of an attorney that specializes in issues related to relationship law in New York State will help a couple determine whether they are married under New York law, including the presence of a marriage certificate, if they have filed a petition for divorce, or have filed for relief in matrimonial court. It can also help to determine if they are eligible for domestic partnership benefits offered by New York City or surrounding counties.