What is Common Law Marriage?
Common law marriage can be difficult to understand, even for practitioners. A common law marriage is a marriage that does not involve a marriage ceremony. Instead, a common law marriage is formed by the joint actions of a couple who satisfy the legal elements required for a marital relationship. The elements for a common law marriage consist of capacity of the parties, agreement or mutual consent to be married, cohabitation, and reputation of being married .
It is important to note that New Jersey does not recognize common law marriages, except in the context of a marriage that was legally created in another jurisdiction that recognizes common law marriage. If a couple consists of a new Jersey resident and a non-New Jersey resident, a common law marriage will be recognized in New Jersey only if the other state previously recognized the marriage. New Jersey acknowledges that marriages, once entered into, are not subject to dissolution regardless of whether the marriage was common law or ceremonial.
Common Law Marriage in the State of New Jersey
Common law marriage status is not recognized in New Jersey. This became the clear rule in New Jersey based on the Supreme Court’s decision in Kirkpatrick v. Middlesex County Municipal Joint Insurance Fund, 121 N.J. 384 (1990). In that case, the plaintiff sought to determine whether he had a common law marriage, entitling his ex-wife to an annuity as his widow. The trial court, relying on the holding of Britannica Opinion No. 9, determined that the plaintiff had established a common law marriage. On appeal, the Supreme Court reversed the lower courts and explicitly overruled the prior holding of Britannica Opinion No. 9.
The Supreme Court in Kirkpatrick discussed common law marriage as follows: We note, however, that there has been a significant change in the public policy setting in the United States and the State of New Jersey concerning the effect of contractual innovations on statutory rights. First, Title 34 was amended by L. 1970365 (effective September 24, 1970) to protect pensions, deferred annuities, and death benefits from government creditors. Second, the New Jersey Legislature has amended the statute governing the distribution of marital property to provide a pre-death alternative to common-law marriage through equitable distribution of property in the event of a divorce. These two statutory innovations are reflective of the same concerns that embraced the Legislature when it abolished common law marriages by holding that no new common law marriages would be valid. Because a common law spouse does not have any of the rights of a legally married spouse, we are convinced that the disallowance of new common law marriages remains a necessary public policy. We consider common law relationships premised on fictitious "spousal" titles counterproductive to the promotion of a stable family structure and continue to require a formal marriage license before our courts will recognize a marital relationship.
Thus, new common law marriages are not valid in New Jersey.
Impact on New Jersey Couples
The legal non-recognition of common law marriage in New Jersey means that couples may find themselves unintentionally in a gray area when it comes to their status and what rights and responsibilities they enjoy as a result. A couple may have lived together for years, in a committed relationship, but if their relationship ends or they gain an inheritance, they may be surprised to find that there is no legal precedent for determining their property division rights or their right to make medical decisions for one another, for example. Additionally, if a couple has children while holding themselves out to be married, there are potential child support and custody implications, as well. Under New Jersey law, a non-married person has no automatic or implied right to obtain custody or parenting time with a child. In other words, unmarried parents cannot assume they are entitled to the same rights as a married parent in New Jersey, and any such rights must be established as a matter of law.
Alternatives to Common Law Marriages
However, there are alternatives in New Jersey for those who have not entered into formal marriages but wish to be recognized under the law as a couple. Civil unions were created for unmarried couples of the same sex that wish to have some of the rights afforded married couples. However, now that same sex marriage is permitted in New Jersey , civil unions are no longer ongoing for such couples. Civil unions for opposite sex couples remain ongoing in New Jersey despite same sex marriage. Domestic partnerships created by statute are for same sex couples as well as couples who are of the opposite sex if at least one partner is 62 or older. If an opposite sex couple wishes to become domestic partners they must be 62 or older or the domestic partnership can be dissolved if one party turns 62. Domestic partnerships may now be voluntarily converted to civil unions or dissolved. Couples who are not eligible for a civil union can become domestic partners and vice versa.
Seeking Guidance and Advice
The patchwork nature of cohabitation law across the United States creates uncertainties for unmarried couples. While some states allow same-sex couples to marry, other states are resistant to recognizing same-sex relationships at all. For mixed-gender couples, there is little guidance.
If you are an unmarried couple living in New Jersey, it’s important that you speak to an experienced attorney about your rights, and what actions you should take.
First, you should take the time to understand your rights as they relate to financial support. The lack of spousal support laws for unmarried couples in New Jersey means you may have additional legal issues to consider when ending a long-term relationship. When married couples separate or divorce, the court will divide your assets, debts, and liabilities based on equitable distribution. Unmarried couples , on the other hand, do not receive the same protections.
The use of a cohabitation agreement is common among unmarried couples. When written correctly, a cohabitation agreement can mimic the benefits of marriage. It can address issues like how to divide property and debts, if one person moves out, and what happens if you have children. Cohabitation agreements can also provide clear outlines for issues like household duties, pet custody, and health care decisions.
Finally, you may want to consider creating a will. Even if the law views you as a domestic partner, your surviving spouse may not be able to inherit from your estate without a will. While no one likes to think about their own death, it is a necessary precaution to view whether your current estate plan covers the needs of an unmarried couple.
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