Common Law Marriage And Misconceptions

By Staff Writer

Many people today are under the mistaken impression that if a couple has lived together for a certain number of years, their union will be considered a "common law marriage." A common law marriage is the legal term for a couple that lives together as Husband and Wife but has never had their marriage legally consummated by a civil or religious marriage ceremony.

In States that recognize common law marriage, each party to the relationship is entitled to rights that are usually only recognized in legal marriages, such as the right to share in the property of the other and the right to receive spousal support or alimony. While some states do recognize common law marriage, New York State does not.

Even though New York residents cannot benefit from the rules of common law marriage, New York Courts will recognize and enforce a common law marriage that is valid in another state. If a couple has been in a state that does recognize common law marriage for whatever period is required to establish a common law marriage, they will be considered married in that state. If the couple actually resides in New York at that time, or subsequently moves to New York, they will be protected by the laws of New York State as a married couple.

Satisfying the requirements of common law marriage in another state may not require that a couple actually live in that other state.  In fact, some states that do recognize common law marriage do not actually require that a couple reside in that state.  The practical effect is that a couple residing in New York State may take advantage of the common law marriage rules of another state without ever living in that state.   If that other state only requires a short visit, such as two weeks, and the couple travels to that state, stays there for the required period of time, and meets any other requirements of that state for establishing a common law marriage, that couple can insist that New York State recognize them as married. 

The ability to claim a common law marriage is very important if the couple breaks up up.  Couples, who have lived together in New York State without the benefits of marriage, are often at disadvantage in the event of a break-up. Unless property is titled to both parties, the non-titled party generally has no rights to share in that property. Even if the couple has resided together for a lengthy period of time, there is generally no right to share in the property, assets and income of each other. Especially in cases where one party does not have title to the residence in which the parties’ resided, this can be particularly painful and difficult. Regardless of the amount of labor and effort the non-titled party has invested in the property, he or she may not be entitled to share in the value of the home. 

If you and your partner do not want to get married, but are committed to remaining together, you can, and should take steps to protect yourself. Although New York does not recognize common law marriage, legal contracts are recognized and enforceable. An attorney can draft such a contract that, much like a prenuptial agreement, protects both parties in the event of a break-up.  If you are involved in a situation where a break up has occurred and you have not been legally married, you should consult with counsel to determine whether you can meet the rules of any other state for common law marriage.