clarifying common law marriage
In order to truly understand whether New York State recognizes common law marriage, it is important to first understand what a common law marriage is. A common law marriage is a marriage between two people who have not entered into a ceremonial marriage or a couple with a valid marriage license. Instead, they have obtained legal recognition of their marriage by simply living together for a certain period of time and behaving as if they were married. A common law marriage requires that certain conditions be met, including: both persons must be at least the age of consent to marry under the laws of the state in which the marriage is said to have taken place; both persons must be free to marry each other (i.e., neither person remains married to another person); and both persons must intend to be married to each other (under the circumstances, the parties must believe they are in a marriage that is valid under state law). Historically, common law marriage originated in 12th century England. Historical records indicate that English courts originally required that a couple must be "homo et feles"-that is, they must cohabitate in the same house sharing the same bed together. While this notation referenced an animal and its owner, it did not refer to sexual relations between the parties. Such cohabitation was viewed by the court as sufficient evidence of the parties’ intentions to be married. Common law marriage became recognized in the United States by common law. In the early 19th century, courts began to recognize common law marriages on the theory that such unions were in accordance with the will of the people, as opposed to legalistic recognition by the government. In the 19th century , common law marriages were typically governed by three requirements: (1) the parties were required to "cohabit" for a certain period of time; (2) the parties must have had the requisite intent to be married; and (3) the parties must possess the requisite capacity to marry. State legislatures later adopted various statutes that abrogated the common law system and required formal marriages through governmental authority. As a result, common law marriage has become less frequently recognized in the United States over the past 100 years. New York State is one of the seven states in the US that allows for common law marriage. Prior to April 29, 1933, common law marriage provided the only means for couples to get married in New York State, since the issuance of a marriage license was not required prior to that date. Following the enactment of the Domestic Relations Law in 1933, New York State requires that all marriages be performed using a marriage license. Since 1934, common law marriage is no longer recognized in New York State. The only recognized alternative marriage in New York State is a "covenant marriage," which is a marriage in which the parties enter into a contract indicating they choose to waive the right to divorce unless certain conditions are met. However, covenant marriages also require that the parties obtain a marriage license, thus making it analogous to standard licensure marriage. Since New York State no longer recognizes common law marriage as an alternative to traditional marriage, to have a common law marriage recognized by New York State, the marriage must have been entered into in a different state that recognizes common law marriages. Such marriages entered into in a recognized state are then recognized by New York State. Currently, only fourteen US states, the District of Columbia, and the US Virgin Islands recognize common law marriages.
common law marriage in the state of new york
A brief overview of the laws and case law that may or may not apply to the situation at hand and are not covered by a statute: In general, the "Common Law" relationship is a colloquial term used to refer to parties who have been either dating for a long period of time or perhaps live together without the benefit of a marriage license. The phrase is derived from the United Kingdom where in 1753 the "Marriage Act of 1753" regulated the recognition of marriages in England. Currently, commonly referred to as a "solemnization requirement" in the United States, most states do not recognize this type of union because it is believed that "Common Law" relationship is merely a backdoor way to create a marriage without the benefit of a license. In 1933, New York State abolished the common law rule. However, it was formerly recognized as legal in the state until its abolition. Today, the state does not recognize common law marriages. The Domestic Relations Law Section 11 clearly states the following: No person shall be joined in marriage without a license granted by the town or city clerk or the commissioner of health of the county of New York. Under the prior version of this statute, the law firmly stated that a person could not be joined in marriage unless they were "licensed" to marry. It also went on to define specific relationships that are prohibited in order to enter into a marital union. In 1989, the law was changed and the current language of section 11 is strictly prohibitive of a common law marriage in New York State. The definition of a valid marriage is any person who enters the state of New York with a valid "license" will be considered married under the laws of New York State. The creation of case law, or precedent setting decisions of courts in New York, have further promulgated the abolishment of Common Law Marriage. In Raynor v Raynor, 47 A.D.2d 228, a 1975 case, the Appellate Division stated the following: Parents can not establish a common law marriage in this State in 1974, nor did any party in this case believe they had done so. What they did undertake was to recognize the existence of a marital relationship on what they mistakenly took to be the strength of the laws of South Carolina, the domicil in which they resided, where such a relationship is consistent with public policy and their rights thereunder have been judicially sanctioned (see Raymond v Raymond, 248 S.C. 232). This policy of the State of New York, that non-license marriages create no binding legal relationship, is clear and may be freely given retroactive effect even when to do so may displace a vested right.
new legal and tax ramifications for couples moving to the state of new york
When a couple who has already entered into a valid common law marriage in another state moves to New York, the question of whether or not New York will recognize their marriage can be confusing. In these situations, there are four relevant categories, as follows:
- If a couple who has entered into a valid common law marriage in a state that recognizes common law marriage, such as Pennsylvania, then the couple moves to New York, then the couple’s common law marriage will be recognized in New York.
- If a couple who has entered into a valid common law marriage in a state that does not recognize common law marriage, then the couple moves to New York, then the couple’s common law marriage will be recognized in New York only if they entered into the marriage before September 1, 1933.
- If a couple who has entered into a non-valid common law marriage, then that couple moves to New York, then the couple’s non-valid common law marriage will not be recognized in New York.
- If a couple who entered into a valid common law marriage in a state that does not recognize common law marriage, then the couple moves to New York, but then the couple has a ceremony of marriage in New York while still living in New York, then the couple’s common law marriage will not be recognized.
For a couple contemplating divorce in New York, it is important that the couple research how New York courts will view their particular marriage. If the couple is unable to prove that they were in a valid common law marriage, then they will not be afforded the spousal benefits and protections that validly married couples receive in New York.
other legal options for couples living in new york
As an alternative to common law marriage, courts in New York are willing to recognize and enforce written cohabitation agreements between unmarried couples. In most cases, parties to a cohabitation agreement cannot take advantage of the spousal protection afforded to couples who are legally married. An exception to this rule exists for child support issues where there is a well-defined premarital agreement. New York State has laws that recognize domestic partnerships. These laws provide a mechanism whereby legal partners can establish some of the rights usually reserved to married couples . Individuals who live with one another but are not married will not be considered legal spouses for the purpose of federal or state income tax purposes unless they meet state regulations that govern domestic partnerships. The New York Domestic Relations law does not mandate that such arrangements confer any benefits such as pension, alimony, death benefits, health insurance or property division, and such benefits as an incident of the relationship are solely a matter of the agreement to cohabitate between the parties, subject to the enforcement of such an agreement by the courts.
considerable legal advice for unmarried couples
If you are not married and living together in New York, at the very least you have to have a will. Otherwise, if one of you dies, the default rules will apply. That means that if you are unmarried and live together, no matter how long you have lived together, the default personal property laws will kick in and the only persons who can inherit from you are your parents, children or siblings. These laws say your estate goes to these persons in that order. And if none of these persons exists, your estate goes to the State of New York.
If you don’t leave a will, you may be surprised to find out after you die that the person has no legal claim to the money or property, including the family home. Even a situation where one of you is granted a power of attorney and is handling your financial matters is not enough to create any legal rights for him or her.
Some persons recommend creating a power of attorney and a health care proxy. These buy you some time, but there is a catch: death will terminate these legal documents. So, again, if you die without a will in place, the State will take your property.
Will a person who is living with you full time be able to manage your medical affairs and finances in your absence? Should something happen and you become incompetent, a power of attorney can be challenged by your relatives. A spouse, relatives of either spouse and descendants of either spouse have priority over other persons to be appointed as guardian if you become incompetent, whether or not you have a power of attorney.
Further, if the power of attorney terminates upon your disability, then who is going to handle the real property you own? The property law of New York does not grant anyone other than owners that right unless the owner authorizes it clearly in a document, which then must be given to the local tax office.
The bottom line is that the best way to make sure your wishes are honored is to consult an estate planning attorney to discuss the issues outlined above, and to have a will in place.
to conclude: informed decision making
While the federal government recognizes common law marriages—the Supreme Court ruled earlier this year that a spouse’s rights to certain federal benefits weren’t impeded by the fact that their marriage was common law—the state of New York does not. Per New York Domestic Relations Law § 10 (1), "All marriages contracted without the state, which if contracted within this state would be null and void, are null and void unless valid where contracted."
Given this language, some well-meaning people may decide that regardless of whether their relationships qualify as marriages under their own states’ laws, they expect to be treated as married couples under federal law (and even able to file taxes jointly). This may seem a tempting proposition , but will likely be decidedly less attractive if it ends up subjecting those couples to their states’ anti-sodomy laws that carry long prison sentences.
So what’s a thoughtful common law couple to do about all this, assuming he or she thinks his or her relationship should get axed on its day in court? That answer is relatively straightforward: find out the law of the state where and when you entered into your relationship, and get legal advice from a qualified professional concerning your specific circumstances. Only by doing so can you set about to make the best possible decision for yourself and anyone else affected by your relationship and its end.
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