What Is a Common Law Marriage?
Common law marriage is an agreement between two parties who choose to live together as husband and wife without a license or ceremony and without making a public proclamation of the relationship. Common law marriages have been in existence for hundreds of years.
A common law strategy relied on by some people was simply to ignore the requirements to obtain a marriage license, or have a ceremony, and then reside together as husband and wife in a single residence, in which case common law marital rights would automatically arise, even without an affirmative agreement to be husband and wife.
However, in the modern era, in which societies have moved away from agrarian lifestyles (when the need for formal recording was not as important), the lack of any paperwork evidencing the marriage relationship can cause problems. For instance, evidence of marriage may be required to pass property from one spouse to another free of death taxes . There are other legal situations that require proof of a valid marriage to establish rights.
In 2005, the Kentucky legislature abolished common law marriage in Kentucky effective immediately for new couples, with some exceptions for couples already living together prior to that date. Before that act, common law marriage was still considered a legitimate form of marriage in Kentucky, and there were a number of decades-old statutes that continued to collect dust on the books. The general requirement for the establishment of a common law relationship was proof that a couple lived together and formed a general reputation in the community as husband and wife, sometimes referred to as "cohabitation and reputation."
Relatively few states recognize common law marriages. Most of those that do either require a special filing of notice of the agreement to form a common law relationship at the courthouse, or otherwise require a 3-6 month waiting period during which the couple must live together as husband and wife.
Kentucky and Common Law Marriage
Kentucky does not recognize common law marriages entered into after June 30, 1971. KRS 402.040 preserves the ability to enforce legal property rights of all surviving spouses who entered into a common-law marriage and those who were in relationship equivalent to marriage before June 30, 1971.
"Common law marriage" is just a term that is used in other states to describe a situation under which two people can simply live together and hold themselves out to the world as being married, and the state will recognize them as legally married, even in the absence of an actual marriage license, ceremony, or celebration.
Kentucky does not recognize common law marriages, but only with respect to those relationships entered into after June 30, 1971.
The Kentucky Supreme Court held that, in those cases, the parties must:
In 1971, the Kentucky Legislature passed KRS 402.040, restricting the enforcement of the common law doctrine to relationships entered into before the enactment of the statute.
Exceptions and Other Points to Consider
Although Kentucky does not currently recognize common law marriages, there are certain exceptions and unique considerations to be aware of that can substantially impact divorce and family law-related matters.
Common Law Marriages From Other States
One such exception in Kentucky is if you have a common law marriage from a different state. As indicated above, Kentucky doesn’t recognize common law marriages. However, if a common law marriage happened in another state and is valid in that state, then Kentucky will recognize the common law marriage in the context of divorce or family law proceedings.
For example, let’s say you got married under the laws of Texas, which are different than Kentucky laws for determining when a common law marriage occurs. Because Texas recognizes common law marriages and you were married under Texas law, the Kentucky court would recognize your common law marriage from Texas in your Kentucky divorce proceeding.
Barriers to Ending the Marriage
Barriers to ending the common law marriage also exist in Kentucky. Prior to 2016, if one person did not want the marriage to end, then legally, it could not end. That is because there was no right to seek a divorce where a common law marriage existed. In 2016, the statute changed, allowing a court to end a common law marriage in Kentucky where either party does not want the marriage to end.
Also, there is another barrier to ending the marriage in Kentucky. If someone wants to contest whether the common law marriage even happened, they must file an action in Kentucky to ask a court to determine whether the common law marriage ever existed. Who would want to end the marriage anyway? Parties who are going through a divorce and one of them believes there is not a valid common law marriage would like to contest the validity of the marriage, but they cannot do so until the other party wants the divorce. And the other party cannot file for divorce without the other party’s consent.
All of this may seem illogical, but for better or worse, it was Kentucky’s law prior to 2016.
Other Legal Options for Kentucky Residents
Cohabitation agreements and domestic partnership arrangements are legal alternatives to common law marriage in Kentucky. In the absence of a recognized marriage in Kentucky, parties may allocate their property upon separation by entering into a contract, like a prenuptial or cohabitation agreement. Cohabitation agreements are also sometimes referred to as postnuptial agreements. In addition to dividing property in the event of death or divorce, a cohabitation agreement can address other issues such as spousal support, debts, and parenting responsibilities.
If the parties have children, they need to make sure that their custody, parenting time and child support arrangements are approved by the Kentucky Family Court . Otherwise, the court may later find that Kentucky has never had jurisdiction over the child and the agreement would be unenforceable under Kentucky law.
Domestic partnerships have been more widely embraced by municipalities in Kentucky rather than through state statutes. The City of Louisville currently offers domestic partner benefits to those employees who register a declaration of domestic partnership at Louisville’s Office of Human Resources. Louisville’s policy does not include same-sex or unmarried opposite-sex couples with respect to health care benefits. In 2015, the City of Lexington introduced domestic registry benefits for employees, but the program also does not extend to same-sex or unmarried opposite-sex couples.
Effects on Other Legal Proceedings
To understand how the lack of common law marriage impacts your legal position on divorce, child custody, property rights, or inheritance, it is important to understand what the law is in Kentucky. Kentucky judges are required to follow the law as written by the legislature and interpreted by appellate courts, and Kentucky law does not allow you to enter into a common law marriage.
Because there is no common law marriage in Kentucky, unmarried couples with children have no legal rights when it comes to those children. If those parents are living in Kentucky, they are unmarried. As such, any issues of child custody and child support must be handled in accordance with Kentucky’s laws on child custody and child support.
If one person dies and has not legally married or entered into an officially sanctioned civil union or domestic partnership, the other has no legal claim to inheritance. If a will exists, that will governs the distribution of assets, no matter what the relationship between the deceased and the other individual. Even if a property deed contains both individuals’ names, that property must go through probate and cannot be transferred to the living owner without probate.
As you can see from the examples here, the lack of common law marriage in Kentucky has a profound impact upon divorce and family law matters, as well as upon a person’s ability to transfer assets or deal with them after their death.
Reasons to Consult With a Family Law Attorney
As with any question of law, the most important thing you can do is consult a family law attorney. Most are happy to have you come in for a consultation and tell you if you even have a case to bring. Once you make the decision to hire an attorney to handle your family law case you need to feel comfortable with that individual because that person will be intimately involved in your life .
If you are unsure if you are married or not and are even located out of state, call a local Kentucky family law attorneys office to at least ask them some basic questions. I have answered basic questions over the phone for people who are located in other states.