What is a Common Law Marriage?
Common law marriage is a legal relationship that has been recognized in New Jersey, though not officially since 1939. A common law marriage is a type of non-ceremonial marriage where an individual couple mutually agrees to be in a marriage-like relationship. It requires more than just simply the mutual agreement to live together as a married couple but it does not require the parties to go through an official state-sanctioned ceremony with a license. When a couple enters into a common law marriage, they are viewed in the eyes of the law as a married couple despite their lack of a formal, official marriage ceremony . Not all states recognize common law marriage; only those that do permit common law marriage at this point in history include Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Alabama, and Georgia – though general laws have specific requirements to meet in each state, depending on the laws of that state.
It should be noted that in most cases, common law marriages must be created by the following process: So, now that you know the general requirements for a common law marriage to be formed, and what the actual definition of a common law marriage in New Jersey, it is important to note that a common law marriage requires both parties to be in agreement of the relationship, would be against the public policy of New Jersey to dissolve the marriage on the grounds of a common law marriage, so for this reason, you cannot file for a divorce if you believe your common law marriage is no longer working.
Common Law Marriage in the State of New Jersey: What’s the Law?
As with many issues in cyberspace, the question of whether New Jersey recognizes common law marriages may be debated and confused if you look hard enough on the Internet. The sources seem to point to New Jersey’s outright prohibition of common law marriages. Yet, careful research shows that New Jersey permits the survival of common law marriages for couples whose relationship commenced while a common law marriage was legal in the state, but who did not formally marry before the law changed. They may embrace a common law marriage if it would be "unjust" not to do so or if it would contravene principles of anti-discrimination, public policy or equal rights.
On a practical level, New Jersey does not have a statutory repeal of laws permitting common law marriages. Instead, in 1980, the Supreme Court of New Jersey decided the case of Maeker v. Ross, which "abolished" common law marriages. In so doing, the court cited strong public policy reasons for terminating the premise that parties could "marry" simply by convincing a court that they did. As a result, the court terminated those common law marriages begun after 1980. Because legal opinions are couched in terms of precedent, any common law marriage commenced before that date is not denied redress under the law, even if arguments are made for or against its survival. For all practical purposes, a court may consider whether parties intended to marry and lived together as husband and wife before 1980.
This issue is ironic when you realize that the subjects of common law marriage are largely those individuals who "shunned convention." Those who eschew marriage in favor of long-term cohabitation do so for any number of sociological reasons. They may dislike traditional recognition or intervention by government. They may have had bad experiences which lead to the belief that they could be better-off without marriage. Or they may live together for reasons of convenience rather than desire. Whatever their reasons, they may have pioneered practices that a new generation embraces. It is likely that younger generations will continue to follow this trend. Still, they should be aware that even in relationships that produce children, many years of cohabitation and great economic entanglement may terminate without any recognition or redress by a court after 1980.
What does it mean for a couple to live in the Garden State?
Under New Jersey law, the doctrine of common law marriage is not recognized. Any couple that wishes to be considered legally married must formally enter into a wedding ceremony and thus fulfill the requirements of the statute. However, couples who have moved to New Jersey and previously established a common law marriage in a state where common law marriages are legal will be deemed to be parties to such an agreement. New Jersey’s recognition of foreign common law marriages does not apply if, however, the couple has continuous residence after the date of marriage in a state where common law marriages are not recognized.
Common law marriage and cohabitation are not the same concept. Cohabitation refers to a relationship involving two people who live together but do not necessarily hold themselves out to the public as being married.
Based upon a recent New Jersey Appellate Division decision, a couple who believes they have entered into a common law marriage may not obtain relief by way of a divorce proceeding. The issue in this case was whether a common law marriage was valid under New Jersey law if the couple did not consummate the marriage. The court found that a common law marriage would not be valid under New Jersey law if the couple does not consummate the marriage, and therefore, that the case could not be decided in a divorce proceeding.
The enforcement of foreign common law marriages creates problems of jurisdiction and conflict within the courts. It is also unclear how public policy would be served by overturning prior New Jersey decisions holding that common law marriages are invalid.
Ways outside of common law marriage in New Jersey
New Jersey does not recognize common law marriages, but it does have other legal options for those couples who would like to formalize their commitment. Couples may enter into a civil union or a domestic partnership to ensure all of the benefits that accompany a lawful marital relationship. A civil union is a legally recognized union between two people of the same sex. Those entering into a civil union receive all the benefits of a marriage in addition to the tax benefits and employment benefits realized by married couples. Civil unions are available only to same-sex couples and to different-sex couples where one or both parties are 62 years or older and are already receiving Social Security benefits . Largely for the reasons above, a domestic partnership is no longer an option for heterosexual couples. Currently, domestic partnerships are only available to same-sex couples and to different-sex couples where both partners are over 62 years of age. Like a civil union, a domestic partnership provides all of the benefits of a fully legal marital relationship; however, because domestic partnerships are no longer being granted, they are being phased out as an option for couples interested in a legally recognized relationship.
Is an out-of-state common law marriage recognized in New Jersey?
It is clear from the statutes and court decisions that common law marriages have never been recognized in New Jersey, although they used to be prior to 1905. However, the freezing of the law has given rise to the question of whether a common law marriage entered into in another state will be recognized by the New Jersey courts. The answer is Yes.
In 1984 the United States Supreme Court decided the case of Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213; 92 L. Ed. 156; 66 A.2d 779 (1948). In this case a Pennsylvania couple entered into a common law marriage in Pennsylvania, which was then a common law marriage state. This couple then moved to New York, which had by then abolished common law marriages. The New York Court held that the common law marriage was no longer in existence because New York did not recognize such a union. The United States Supreme Court reversed the decision, holding that "…marriages valid where contracted, as was the case here, on the basis of a determination by the courts of Pennsylvania that it was a common law marriage, were valid everywhere and New York [where the parties had moved] had no authority to change the validity of the marriage."
Since the United States Supreme Court clearly held that a common law marriage validly entered into in a common law marriage state must be recognized in another state, many New Jersey courts have upheld this concept. In the case of Puckrein v. Cardamone, 116 N.J. 17, 560 A.2d 120 (1989), the Supreme Court held that a common law marriage entered into in Pennsylvania by a New Jersey couple was valid and enforceable in New Jersey, despite the fact that New Jersey has abolished common law marriages. The Court stated, at page 36: We conclude that a common law marriage validly entered into in another state with the intention of being married should be afforded full faith and credit by New Jersey. A contrary conclusion would encourage a New Jersey couple to evade the statutory requirements of an official marriage, and would countenance indifference to the legitimacy of those marital commitments valid elsewhere. There is no rational or sound policy reason for treating couples differently based on where they were married. Indeed, denying full faith and credit to a common law marriage invalidates the marriage at its inception and permits judicial meddling with the intent of the parties.
Further, in the case of Manalapan Realty v. Township Committee, 140 N.J. 366, 658 A.2d 1230 (1995), the Supreme Court held that a common law marriage entered into in Pennsylvania was valid in New Jersey. Although no other New Jersey cases appear to have directly addressed this issue to date, both the case law and the statutes clearly state that a common law marriage legally entered into in another state must be treated the same as a ritual marriage.
Legal guidance and implications
Couples who suspect they may be in a common law marriage have one general piece of advice – consult an experienced attorney. While the existence of a common law marriage may have been a viable argument in a divorce or nullity action in the past, common law marriages will not be recognized in New Jersey going forward. While the law is settled for new claims, people who have pending claims from before October 25, 2016, will have the benefit of the old law applied to their case. It is important to understand that , so long as you hold yourself out to associates, family and friends as being married, filing joint income taxes, sharing expenses as a couple (among many other signs) and holding your relationship out to the world as a marriage, you may be creating common law marriage. In some states, this creates a whole host of rights which apply only to married persons which will also apply against you. The only way to confirm is to discuss with a competent attorney.