Is Common Law Marriage Recognized in New York?
When it comes to cohabitation with a significant other, there have always been issues surrounding whether a couple is legally married or not. Many people want to enjoy the same benefits that married couples receive, such as spousal support, health insurance and estate planning benefits. For years, many people who were living together in a relationship considered by many to be a marriage have been concerned about the fact that they did not have the same benefits as a married couple.
In a time when more people are eschewing the traditional marriage ceremony for living together on a long-term basis, understanding whether you are married or not is critical. Legal marriage in New York requires a license, application and solemnization. Common law marriage does not require these elements to be considered valid.
For many years, New York did recognize common law marriage. However, in the case of In re Estate of aha, 1928, 248 N.Y. 224, the Court of Appeals of the State of New York held that public policy would require the Court to recognize common law marriage since it did not involve any moment of ceremonial marriage. The court found that since no elements of the marriage license requirement were present, there could be no common law marriage.
Even though other states recognized common law marriage, New York did not recognize it legally. The Court of Appeals went further, finding that even if there was an argument for recognizing common law marriage, it would do so with very limited circumstances where it suited public policy.
Not long after this case, the New York Legislature passed Domestic Relations Law 11, which ended the common law marriage in New York. Public policy became a valid reason for voidance of a common law marriage contract. As a result , the State of New York no longer recognizes common law marriage.
The rationale for this decision on the part of the Court of Appeals was simple. In marrying, both individuals enter into a contract. This contract cannot be formed unless there is a formal process for its formation. In the case of a common law marriage, there are no solemnizing ceremonies, licenses, applications or other elements necessary to form an official marriage. Therefore, a common law marriage lacks any legal validity.
President Franklin D. Roosevelt signed the bill that made common law marriage illegal in New York. As a result of this bill being signed into law, couples who believe they have entered into a common law marriage are not legally married under the laws of the State of New York. Therefore, upon breakdown of a relationship, there will be no right to spousal support, property division or similar rights that a formally married couple would have with a valid marriage license obtained in the State of New York.
In the case of In re Estate of Edson, 416 N.Y.S.2d 29 (1978), the Surrogate upheld the PDOC Section 11 declaration. The legislature of New York has struck a delicate balance in discussing the validity of a common law marriage. While the law actually recognizes that a common law marriage would be valid if it were to occur prior to the death of the spouse, it does not wish to effectuate this concept after the death has occurred. The law would then become pernicious and unjust as to those involved.
This means that even though you may have entered into an informal agreement to be married prior to October 1, 1934, that agreement is not valid in the eyes of the law. You may have enjoyed certain benefits, but if your spouse died prior to 1934, these benefits are null and void. Unlike other states, New York does not recognize common law marriage and does not have complex laws surrounding it.
Historical Overview of Common Law Marriage in New York
The common law marriage doctrine permits a common law married couple to substantiate their marital status for legal purposes, without a formal marriage license and civil ceremony as required by state laws. Historically several States, including New York, recognized this concept. Although a few states prohibit common law marriages by statutory enactment, today only a few states provide for the recognition of common law marriages.
In New York names which were commonly married "on the street" or "after the fashion of our more southern neighbors," were accepted for proof of pre Civil War marriages. After the Civil War, common law marriages were still recognized by New York when the parties possessed the requisite intent to marry in New York.
Attempts were made to end common law marriage in New York but were met with judicial quandaries. In one such case, the New York Court of Appeals did not expressly permit or disallow common law marriage. It said, Female Slaves v. Seaman, 2 Sandf. Ch. 451 (Surrogates’ Court 1843); rejected it on grounds of unwillingness to apply the law. Because there was no court precedent, the court decided, that court orders as to common law marriage would be left to individual judgment.
In another case, the New York Court of Appeals decided to recognize common law marriages which existed before the year 1909, Belden v. Zaynor, 180 N.Y. 30 (N.Y. 1909). The Belden case was decided by Governor Hughes, an opponent of common law marriage. Not satisfied, Governor Hughes urged the New York Legislature to end the practice.
The New York Legislature tried to abolish common law marriage, again, in the New York Legislature of 1909. Unfortunately for the Governor, the new bill was watered down and it allowed existing common law marriages to stand. Nonetheless, the classic legislative compromise abolished common law marriage in New York. By prohibiting the establishment of common law marriages after January 1, 1910, the New York Legislature decided to keep common law marriages from being established in the future, but to permit established common law marriages to remain.
In 1933 the Legislature modified the 1910 enactment by permitting common law marriages in New York to be valid only if recognized in the jurisdiction in which they originated. The rationale of the Legislature was that individuals could not voluntarily or knowingly violate the New York public policy prohibiting common law marriages, because it would create serious legal consequences.
New York Laws on Marriage and Alternatives
New York has pretty straightforward rules as it pertains to marriage. Presently, New York doesn’t recognize common law marriage as a legal form of matrimony. New York does not require any waiting period(s) before or after marriage and does not impose any residency requirements before issuing a marriage license as there is no legal waiting period for the issuance of a marriage license. New York does not restrict the number of times individuals can marry. All persons must be at least 18 years old to marry, however, if you are under 18, you can petition the court for permission to marry. You are not able to marry if you are already married. In addition, both of you have to appear in person to present yourselves with valid government issued photo I.D., however, if one or both of you is legally incompetent, then the in-person appearance would not be a requirement. There is a fee associated with obtaining a marriage license, ranging from $15 to $40 depending on the county. The marriage license is valid for 60 days from the date of issuance.
In addition, both parties must meet with the office of vital records (register of deeds) to register for a marriage license. After the registration process is complete, you will be informed of when you will be able to obtain and secure a marriage certificate.
Common law marriage is simply a legal marriage that occurs without obtaining a marriage license or having any kind of ceremonial marriage to finalize the deal. Common law marriage is recognized in certain states like Alabama, Colorado, Iowa, Kansas, Montana Nebraska, New Hampshire, South Carolina, Texas and Utah. These states recognize common law marriages, however, there are very strict requirements to contractual agreements of marriage by way of common law.
Because New York does not recognize common law marriages, nor does it give any real guidance to individuals opting to take that route. However, just because a person has lived with their partner for a certain period of time, doesn’t mean that they have created a common law marriage. If you have lived with your partner for over a year, you might think it safe to say that you are in a common law marriage, but it really depends on the state that you live. A person should work to avoid common law matrimony by performing a small ceremony, even it it’s on their own, to avoid arguments later on.
Considerations for Couples Relocating to New York
Moving to New York when you think you may be in a common law marriage is complicated. If you bring a marriage certificate and filed your taxes as a married couple, New York should fully respect your common law marital status.
If you and your partner are from a state that recognizes a common law marriage but you do not have a marriage certificate, you’re more likely to run into problems. For example, if you need to prove your marriage to a third party, that third party might mistakenly believe that, because you’re in New York, you’re not married. That’s true even if your original state’s laws say that you’re married for all legal purposes.
While New York doesn’t have a formal procedure – a "conflict of laws" analysis – to determine if you have a common law marriage, it’s best to be cautious. You can expect most New York courts (and banks, accountants, etc.) to honor common law marriages from obvious states – like Massachusetts and Pennsylvania. If your common law marriage is from a state with a less clear residency law, like Vermont, New York may well dismiss your marriage.
How does this apply to a same-sex couple? New York recognizes common law marriages, but only for those contracted before the 2011 legalization of same sex marriage in New York.
Legal Options and Obligations Without Formal Marriage
While not sanctioning same-sex marriage prior to 2011, New York did offer the option of entering a domestic partnership. On October 23, 2009, Governor Paterson signed bill S.4401, joining New Jersey, California, Maine, and Vermont in offering domestic partnerships that give same sex couples many of the rights as those of legally married couples. Recently, Illinois joined the other states, and on June 1, 2011, New York Governor Andrew Cuomo signed The Marriage Equality Act, allowing same-sex couples to legally marry.
New York State defines a domestic partner as a couple registered with the Governor’s office who "have filed a statement… attesting that they are each other’s sole domestic partner and intend to remain so indefinitely; that they meet the following requirements: both are at least eighteen years old, neither is married or involved in a civil union with another person, and no one else is a domestic partner of either of them . " Spouses in a domestic partnership agreement must sign declarations regarding the relationship, and pay a fee of $35 to register. Indicating what they feel is the public policy concern, a Governor’s memo states that "almost all large employers either currently offer health insurance benefits, or are in the process of negotiating to offer these benefits to domestic partners or same-sex spouses."
Legal rights and responsibilities which come with marriage also extend to domestic partners. For example, insurance coverage provided by an employer may extend to a domestic partner who is injured, similar to that of a spouse. In addition, domestic partners are entitled to medical information about their sick partner, such as hospital record information. However, domestic partnerships, like same sex marriages, are not recognized by the Federal government. Therefore, if a domestic partner is killed in an accident, the other must prove their level of dependency in order to collect on wrongful death or personal injury for expenses.
Recent Legal Developments and Case Law
Although most issues regarding divorce and legal separation from a spouse are fairly straightforward, there are some instances where more complicated questions arise. One of those is the issue of whether a couple was common law married. Many states have done away with the law, but there are still a few states where a common law union is recognized. In New York, however, because a common law marriage is not recognized, the only way a couple can end their relationship is through a legal divorce.
There are some interesting New York legal precedents that illustrate how the courts have dealt with issues regarding common law marriages and what has taken place if someone claims they were in a common law marriage with a partner who disputes it during a divorce case. In the case of In re Christine C., which was handed down in 1991, the issue of whether a common law marriage existed had to be dealt with. The court stated that at that time, such a marriage would only exist if there was clear evidence of a common law marriage being established in a state where that kind of marriage is recognized. Since Connecticut still recognizes such an arrangement, if the evidence was provided that even one partner had a legal union in Connecticut, then that would have to be recognized by the court.
Another commonly cited case that deals with a similar issue is that of In re Cornelia G., which was handed down in 1988. It illustrates the principle of comity. In this case, one of the partners in a couple claimed they were both common law married in the province of Ontario, Canada. Of course, in New York, that wouldn’t hold up under the law. However, the court stated that it would adopt comity as part of its analysis. Because the court ruled that comity extends to marriage, the court then decided to afford comity to the common law marriage of the couple. The court also stated that comity should be extended if a couple were married in another state for the purpose of estate succession.
In another case, Barrett v. Judge, which was handed down in 1975, the court once again illustrated this reasoning. In this case, the couple had been common law married in the state of South Carolina, which at the time allowed such marriages to exist. The court ruled that the common law marriage would be given full faith and credit in New York.
Couples’ Guide: Legal Tips to Secure Your Partnership
So what is the alternative for unmarried couples who want to protect their rights in the absence of a common law marriage? They can try a cohabitation agreement.
Some people think these agreements are just for gay or shacking up couples – combinations that do not have spousal rights – and perhaps should be titled "cohabitation agreements for living in sin." – as my father used to joke about a couple who had an agreement and was thereby sinning less. (No doubt he did so because my mother abhorred the agreement concept and no doubt she and my father did not share such an agreement….)
The fact is that for any type of relationship, especially to preserve the rights of one spouse over another, or children born out of wedlock, such agreements can protect one party’s claim if the relationship does not work out. Unfortunately, such agreements have become more important for many couples. The two most vital concerns are what will happen to assets upon a breakup and how custody will be determined. To the extent that the parties are married, that should be able to be determined by the laws of New York State, but the impact of having a contract concerning such matters can be useful.
Couples now have various ways to enter legally binding agreements to protect themselves and preserve their rights. The form of agreement should be a prenuptial agreement, post-nuptial agreement, or premarital, cohabitating and nonmarital partners agreement.
Prenuptial agreement – a legally binding contract made prior to a marriage. This allows a spouse to sign away spousal support or "alimony" (formally called "maintenance," albeit this term is still used).
Postnuptial agreement – one entered after marriage. (This can also limit maintenance or alimony.)
Premarital, cohabitating and nonmarital partners agreement – an agreement made between those who are not married, though they live together and have chosen to commit to their relationship. It can be thought of as a combination of a prenuptial and postnuptial agreement, not linked to divorce , which otherwise would be irrelevant to the parties, unless it is their desire to have a legal contract for periods of time not necessarily within the context of divorce or death.
The only problem is that NY courts have not established specific requirements for premarital and cohabiting partners agreements, unlike prenups and post-nups, so it is uncertain what may or may not be considered binding.
For example, one issue that has arisen is whether a written agreement signed by the parties satisfies the statute of frauds – e.g., an agreement not to have an extramarital affair. Under the statute of frauds, a contract that cannot be performed within a year must be in writing, and sexual relations during the course of a year may not render the contract unenforceable. Unfortunately, the answer is apparently unclear. A few New York decisions have ruled that such contracts are void because the DO violate public policy, while a recent decision ruled that a post-nuptial agreement, though unenforceable because it was not in writing, was not void, because it was not against public policy to enter into such an agreement.
As noted, "underlying such agreements is the principle that parties who marry should be aware of pre-existing obligations, and must be free to determine their own business affairs, to seek security, to enjoy peace of mind, and to have the right to receive property acquired during the marriage."
Also, as noted, the agreements can be used to establish child custody and visitation arrangements and the distribution of property. But a post-nup may be required to be submitted to the court, to comply with child support guidelines.
Some issues to be discussed include maintenance, division of property, rights of a surviving partner, employment, and children and custody rights. The agreement can also establish a joint business, if the parties one day decide to enter into business together, or the terms for a separation.
So while the concept of common law marriage is not available to couples who live together in NY, there are viable alternatives.