Identifying what common law marriage is
Common law marriage is an agreement between two people who voluntarily choose to live together and be married. This type of marriage essentially functions the same as a legal marriage; however, it can be much more difficult to prove in court. The parties must present evidence that they are jointly sharing financial responsibilities as a married couple to qualify for certain rights and benefits. In New York State, there is no such thing as common law marriage. As such, the only way to be married is to go through the appropriate legal process through the City Clerk’s office.
The main difference between common law marriage and legal marriage is that couples in a common law marriage do not go through the legal process to obtain a marriage license. The couple must demonstrate evidence of their sharing joint financial responsibilities and other foundational requirements of a legal marriage. In some states , common law marriage can only be proven due to presentation of documentation. When a couple seeks a divorce, some states are exceptions to this rule and allow a divorce based upon a common law marriage even in the absence of a marriage certificate.
The basic criteria for common law marriage in the United States are: the couple must be of legal marrying age, agree to be married, and hold themselves out to society as a married couple. There is currently no common law marriage in New York State. The only way to be legally married in NYC is to apply for and receive a marriage certificate.
Describing the legal recognition of common law marriage in NYC
Contrary to some misconstrued opinions, the State of New York does not recognize or allow for common law marriages within the city or statewide. Specifically, the prohibition against common law marriages in New York began with the case of Maynard v. Maynard 1877, however, this decision was later modified in 1909 by the legislature with the passage of the Domestic Relations Law Section 11 which completely prohibited these types of unions.
The valid reasons for prohibiting common law marriages as noted in the case of Wade v. Wade, 33 N.Y.S. 481, 484-86, include:
- before the enactment of Domestic Relations Law ยง11, there was no question about whether there was a valid marriage for purposes of claims of support or for children born within wedlock;
- a lawful marriage demonstrates an individual’s intent to be wed and be bound by law;
- a common law marriage could cause the problem of determining whether the parties intended to be deemed husband and wife for all purposes or just the purpose of legitimizing the child;
- allowing common law marriages also permits a liberal reading of laws which may violate the intention of the State legislature;
- by prohibiting common law marriage also recognizes the difficulty for parties to show there was a mutual consent to be considered married; and
- the prohibition against common law marriage also enhances the state policy against polygamy.
It is important to note that although New York does not permit common law marriages to be created within the state, they will still recognize a common law marriage that has already existed outside of the state and held as valid in the place of its origin. In "Duchess of Windsor v. State of New York" the court noted that although New York does not allow common law marriage, the prohibition of same does not invalidate it when it took place elsewhere. For example, an individual who has a common law marriage in Canada which is honored there and recognized in that jurisdiction would not be prohibited from receiving benefits as a spouse under a New York law if entered into as a valid and bonafide common law marriage at the time of entry and recognized in the state of origin. In the latter case, the proponent of the common law marriage is not prohibited from obtaining statutory benefits under the laws of New York simply because the marriage took place in a foreign jurisdiction that allowed for common law marriages to take place. However, the converse is also true. A common law marriage validly created in NY would not be recognized elsewhere such as in Rhode Island where such unions are not permitted to be created.
However, in recent years, there has been a strong movement towards making the legitimacy of a common law marriage dependent upon a clear and convincing showing of sufficient indicia of domicile state law that had been followed by all the required names or relationships. See Naylor v. Naylor 113 Misc 2d 22, 451 NYS 2d 913 (1982).
Clarifying the exceptions and recognitions
An exception to this rule is if you entered into a marriage in another state or country where common law marriages are recognized, and then moved to New York. While New York does not allow parties to enter into a common law marriage, it does respect such relationships when they are made by another state or country with different rules.
Essentially, if you were common law married in Texas, for example, the State of Texas would ask that you get divorced pursuant to that state’s laws. However, if you moved to New York with the understanding that you were common law married in another state and your spouse died or otherwise sought a divorce in New York, the New York courts would generally respect that relationship as a valid marriage.
Furthermore, if you entered a common law marriage in a state that does not require a formal ceremony or issuance of a marriage certificate, such a valid relationship in New York would necessarily be void of an official marriage license. This phenomenon often arises when spouses apply for credit cards, mortgages or other financial endeavors in which applicants must sign that they are actually legally married. This problem is remedied by such jurisdictions through:
The importance of these circumstances cannot be overstated for parties who have a common law marriage that was legally recognized in another state or territory but who now find themselves residing in New York. Here, a New York court must automatically respect the marital status of the couple who are recognized as married prior to filing for a divorce or separation, even if that relationship was formed by a common law marriage in another state.
Indicating an alternative to common law marriage in NYC
While the idea of common law marriage may seem like an archaic concept to many, there are still couples who may seek similar legal rights and protections. If you are wondering if you can avoid the legal formalities of marriage through a common law marriage, the answer is emphatically no. However, New York City offers other ways for couples to obtain authority over one another without going through a traditional marriage ceremony. These alternatives are domestic partnerships or even cohabitation agreements.
The New York State Domestic Relations Law provides for registered domestic partnerships. It was typically designed for same-sex couples who may not otherwise be permitted to marry. However, a New York domestic partnership is available to both same-sex and opposite-sex couples. The applicant couple must have lived together in a long-term committed relationship and must register with the state.
Domestic partnerships generally provide for the same coverage as a marriage. They allow for the sharing of health benefits, insurance coverage, power of attorney matters, and end-of-life decisions. A domestic partnership, however, is only recognized in New York State and does not have any authority if you travel to another state or country. A domestic partnership does not confer any additional financial protections, such as 401(k) plans, social security benefits, tax breaks or inheritance rights .
In the absence of a durable power of attorney, if your partner were to become ill or incapable of making their own decisions, you would have no authority to make medical or financial decisions on their behalf.
In order to cover those circumstances, it would be best to enter into a cohabitation agreement. Cohabitation agreements specify the rights and obligations of the partners which are similar to a prenuptial agreement. Cohabitation agreements can be used to address matters ranging from property division to child custody and support obligations. They only take effect upon a couple’s separation, but they will confer the same protections as a legally binding divorce. A cohabitation agreement can also be used to avoid a situation where one partner exploits the other’s assets in the absence of a marriage. Cohabitation agreements may give homosexual couples the protection they need if same-sex marriages are not legalized.
In conclusion, there are many alternatives to a common law marriage that both same-sex and opposite-sex couples can take advantage of if they want to avoid the traditional marriage ceremony. However, none of the alternatives will give you the same legally-recognized status as a traditional marriage or the same rights and protections.
Getting legal advice and moving forward
Given the complex and often unclear landscape when it comes to relationship rights in New York City, getting legal advice from a qualified New York City divorce attorney is key to understanding the full implications of unmarried partnership and cohabitation. While many people simply think about divorce in connection with marriage, the dissolution of unmarried couples can be equally complicated – and potentially contentious – in cases of significant assets, property or children. Furthermore, some couples believe that because they live together and share a life, they are entitled to the protection of marital laws such as equitable distribution if the relationship ends. However, laws around property, finances, custody and support for unmarried couples differ substantially and in many cases, the courts may not have jurisdiction at all to resolve a dispute. It’s important to know what legal measures can and should be taken ahead of time to ensure your rights are protected and that you are protected against the legal repercussions of your status as a single person.
Separating common law marriage myths from truth
For many people, the first thought that comes to mind when they think about common law marriage in NYC (and in other jurisdictions around the country) is that it’s an easy way of getting special marital status without having any marriage records. Others might get the idea that establishing a new common law marriage would free them of an existing marriage (under the theory that memory of the earlier marriage could be erased by virtue of being redefined as single and newly married). Still others might harbor the belief that they can simply move in with someone else, hold themselves out to the public as married, and then walk away from the relationship with half of everything own, or even half of everything the other person owns.
Where do these misconceptions come from? Much of it has to do with misunderstandings of what the term "marriage" means. In NY, as in most places, the term "marriage" at its most basic level refers to a partnership between two people, legally recognized, based on voluntary consent. The hard truth about common law marriage is that, like it or not, anyone who enters into a common law marriage (as opposed to a registered one) is voluntarily choosing to assume a special legal status. Those who insist that they are married under some alternative set of rules do not realize that the type of arrangement they have entered into instead is either a non-relationship (perhaps one based on convenience or cohabitation) or a contract (perhaps a romantic contract that has later morphed, against their wishes , into a marriage-type agreement).
The problem with holding these mistaken beliefs is that the law does not recognize your personal or romantic wishes/whimsy. It also does not recognize those equal rights to partnership (like what you may have read about in books or seen on television). Instead, what the law recognizes is the real world situation in which you have placed yourself, and how it corresponds to that of other people who found themselves in the same (or similar) situation. Under that strict view, your place in the overall scheme of things may not be as secure as you or your friends had thought.
Here are a few examples of common law marriage reform myths, how they persist, and what the true facts are.
There are many other myths floating around out there, but as you can see from the above, some of them are so far from the reality of the common law marriage concept that you really have to ask yourself why anyone would want to perpetuate them. It could be for a variety of reasons, but chief among them could be the harm that their perpetuation causes. For instance, people who are led to believe that they can still get an inheritance from their former spouse (or one that preceded the common law marriage) may end up entering into new relationships under false premises. As a Family Law lawyer, I have seen plenty of instances in which one partner in a common law marriage ends up relying on the wrong advice to act in a certain way that leads their partner to think that the relationship is secure, only to result in a new era of acrimony and relationship dissolution.