What is common law marriage?
What is common law marriage?
Common law marriage is relationship status that denotes a couple’s intent to be married under circumstances other than a formal ceremony or issuance of a marriage certificate by the state. Such relationships are recognized as legally valid in certain jurisdictions as factual marriages with the same legal benefits and repercussions of formal marriages. In other jurisdictions, common-law marriage is recognized only for the purposes of contract provisions, where couples have named each other in wills or made financial arrangements under the assumption of a legally recognized status. Saving the expense of obtaining a marriage license is not a valid reason for engaging in a common law marriage . Common law husband and wife have the same legal rights to inheritance in intestacy (in the absence of a will) as formally married persons, and similarly have the right to make medical decisions and property claims based on marriage. Common law spouses in many cases also have the right to equitable distributions of property, spousal/property support, health benefits and tax benefits, such as filing married with the Internal Revenue Service. The concept of common law marriage is historically significant as it evolved from customary marriage practices that long predate the establishment of formalized civil marriage certificates. Yet, this facet of customary marriage holds no sway on its own in New Jersey or 43 other states that are party to the Uniform Premarital Agreement Act (UPAA).
Common law marriage in New Jersey
Common law marriage is the term that describes a situation in which a couple is living together and holding themselves out as husband and wife without being formally married. While many states had once considered these type of marriages legal, today the numbers have fallen significantly with the exceptions of a few states and the District of Columbia.
New Jersey does not have common law marriages anymore. In fact, on January 13, 1939, the New Jersey legislature passed N.J.S.A. 37:1-10, which explicitly abolished common law marriages. Twenty years after the statutory abolition of common law marriages, the New Jersey Supreme Court opined and held that no new common law marriages from that date forward should be recognized here.
Thus, despite the yearly rise in domestic partnerships, civil unions and other alternatives to marriage, common law marriage no longer exists in New Jersey.
Requirements and implications
Before a couple can be considered to have been in a valid common law marriage, certain requirements must generally be met. First, the couple must have entered into a valid contract to be married. Second, the couple must maintain a cohabitating household together. Third, the couple must hold themselves out to the public as being married. Whether a contract is valid depends on the laws of the state, however, generally speaking, there should be no evidence that either party meant to avoid the law as to marriage and there must be an intention to be married. Once married, a couple must treat each other as husband and wife and be acknowledged as such by the community.
Because a common law marriage is considered to be a legal marriage, the same implications that accompany a traditional marriage apply. Part of these implications relate to alimony and child support obligations, such as equitable distribution of marital property, etc. For example, if a common law marriage is established in court, and one spouse dies intestate (unwilling to make a will), the other spouse would inherit from her deceased spouse the survivors interest under the intestacy laws. Also, if a couple has children, the children would be entitled to inheritance rights in their parents’ estate.
Common law marriage alternatives
It is important for couples in New Jersey to understand that there are alternatives to common law marriage that can help protect their assets and ensure for proper treatment under the law. Domestic partnerships and civil unions have been recognized in New Jersey as a legal means of providing for the rights and economic security of same sex relationships since 2003.
The Domestic Partnership Act, N.J.S.A. 26:8A-1 et seq., provided for limited rights for registered domestic partners at the administrative level. The law was repealed in 2011. A civil union affords a mechanism by which couples in same-sex relationships can bring the same federal tax benefits and other federal law benefits available to a husband and wife and enjoyed by the common law married couples. However, domestic partnerships were originally limited in scope to persons age 62 or older.
They only carry over the same rights of partners to make end-of-life decisions so long as partners are not estranged and are competent to consent. That limits the ability of a domestic partnership to protect the rights of one spouse who has to make decisions for an incapacitated partner. Also, domestic partnerships are not valid if the parties are related or if one party is already married.
On February 19, 2007, New Jersey passed the Civil Union Act, N.J.S.A. 10:1-1 et al., available for same-sex couples who could not marry due to religious or other issues (again, like domestic partnership, partners must be free to marry anyone else and must be over the age of 18). Civil union partners have the same right to employment and health insurance benefits, state and local taxation, support under spousal privilege and intestacy laws, adoption law, right to sue for wrongful death and other rights. The advantages of civil unions, however, do not extend to all federal statutes. For example, the law does not cover the Defense of Marriage Act ("DOMA"), which is a federal law prohibiting the federal government from recognizing non-traditional marriages, such as same sex marriage, and denying to same sex married couples the federal benefits that heterosexual married couples enjoy.
Likewise, the Social Security Act, which regulates entitlement to various social security benefits, does not cover civil unions. So while partners are protected under laws dealing with taxation, state employment and such, they remain a vulnerable class of people under federal law.
It is important that partners in civil unions understand that the economic rights and protections afforded them through a civil union remain, to some degree, confined by the limitations of the following: Therefore, the civil union extends certain rights to the partners but not all of the benefits enjoyed by traditional married persons.
Today, with the unraveling of restrictions and the recognition of the vulnerability of those who are not permitted to marry for reasons of sexual orientation, there are talks of repealing the Domestic Partnership Act altogether and simply permitting marriage of same sex couples. The result is that partners in domestic partnerships are being advised to convert their limited domestic partnership to a civil union so that they have the fullest protection of the law until such time as the ban on same sex marriage ceases to exist in New Jersey, opening the doors for a more formalized opportunity to marry.
How to protect your relationship rights
Practical steps couples can take to protect their relationship rights when engaged in a long-term romantic relationship are the following: -A cohabitation agreement under which each party waives his or her rights to the other party’s property or income is the most common way of doing this. These agreements may be as simple as a written exchange of promises that are notarized, to elaborate contracts covering every conceivable situation, similar to a marriage settlement agreement or pre-nuptial agreement. -A couple that wishes to execute a cohabitation agreement should consult an experienced family law attorney so that the agreement is properly drafted and provides the legal protections the parties intend to include. -Signing a cohabitation agreement does not mean that the relationship cannot be found to be a common law or terminated marriage relationship , or be used as evidence to enforce a claim under New Jersey’s palimony law.
-Good estate planning is also essential to protect your interests, especially where there are assets like pensions or retirement accounts or children from a previous relationship to consider. -Your estate plan can spell out how your assets are to be divided upon death, and you can appoint who you want to receive your assets. You may also decide whether you want your significant other to have authority over your health care decisions if you can no longer act for yourself.
FAQs
What is common law marriage in New Jersey? While there are many legal factors used to determine whether a common law marriage exists, generally a couple must live together for a significant period of time and hold themselves out to others as being married. This is often referred to as "cohabitation." The New Jersey Supreme Court has determined that, for a common law marriage to exist, it is necessary for the parties to have entered into a marriage contract. Generally, this requires proof that the parties intended to be legally married. Most courts today deal with the issue of whether the parties held themselves out as being married to the public. For example, did the two people live in the same home? Did they require each other to wear matching wedding rings? Did they identify themselves as wife and husband? Perhaps the most important factor is whether the parties presented themselves to obtain legal rights as a married couple. Another factor is intent to marry. Dependent upon the circumstances, evidence of intent can be oral or written.
Does New Jersey recognize common law marriage? New Jersey doesn’t recognize common law marriages where the laws of another State do. If another State allows common law marriage, New Jersey will recognize the marriage.
Does my child gain the same legal rights if I am in a common law marriage as if I was married? Common law marriages are treated no differently than traditional marriages in New Jersey. Usage of the term, "marriage" describes any bona-fide, and long term relationship between a man and a woman or same sex couple. To prove a legal union between a common law couple, evidence of cohabitation is always a requisite. Any child born to a married couple or a couple in a common law marriage has the same legal rights and privileges as a child born to a married couple. The right to support, inheritance, insurance coverage, social security benefits, immigration status, etc., do not differ between common law children and marital children.
Can my common law spouse get part of my estate if I die? This depends on the terms of your will, if you have one. If you want to leave your property to your common law spouse, you need to specify this in your estate planning documents. If you do not have a will, the law provides the following: The above applies equally to marriages as it does to common law marriages. If you want your estate to go to someone else, you should speak with an estate planning attorney to decide how you want things simplified by planning ahead. It may be difficult to examine the validity of a prior Common Law marriage. The legislative history behind the abolishment of common law marriage shows no intention but to forbid new establishments of common law marriages in New Jersey. Prior to 1939, it appears that Common Law marriages were common. At least one State in our country, Massachusetts allows common law marriages. If one of the parties to the common law marriage resides there, your prior marriage will likely be valid. Only a New Jersey court can decide on the validity of a prior common law marriage.
Conclusion – Relationship laws in New Jersey
As a summary of this discussion, while the concept of common law marriage continues throughout many cultures, in the Garden State, effectively no one in New Jersey will be deemed common law married. For those who presently consider themselves common law married, it would be prudent to consult with a lawyer regarding the legality of that status and to gather all of their information that they have on the formation of the relationship and what plan(s) that they have to finalize, if any . As you can see from this article’s careful analysis of this issue adhering to a comprehensive review of case law and statutes, understanding relationship laws in the State of New Jersey can be very complicated.