What is a common law marriage?
Common law marriage is a non-ceremonial concept of a marital relationship that was once the legal and historical basis for lawful marriage in New Jersey. In this type of marital arrangement, a husband and wife reside and cohabit together, hold themselves out to be a married couple, and have a general reputation within their community of being united in the marital relationship.
Historically, common law marriage existed to allow those individuals who were unable or unwilling to go through the formal requirements of a conventional ceremonial marriage to utilize their relationships, based upon the social and religious standards of their community as a substitute for formal marriage. It was designed to meet the social needs of the community, while complying with its mandate that relationship be sanctioned by some third party – in this case , the community itself. As the Supreme Court of Iowa put it: "the very purpose of requiring a formal ceremonial marriage was to guard against imposition by prohibiting the marital status unless the community, speaking through its law, sanctioned it."
As such, the essential criteria for common law marriage involved the integration of the parties within the societal fabric of their community, and the acclamation of their relationship by the community. Within this context, the courts saw their role as interpreter of the law, rather than creator thereof.
In keeping with this perspective, in order to establish the existence of a common law marriage, the parties generally must: (1) have been domiciled in New Jersey during all or part of the governing period; (2) have lived together as husband and wife in New Jersey during all or part of the governing period; (3) have had a present intent to be married; and (4) have had a reputation within the community of being married.
The legal status of common law marriage in New Jersey
In New Jersey, common law marriage is not recognized as a legal way to form a marital relationship. This concept has been understood in the state for many years. Statutes originally enacted in 1939 and 1986 both make it clear that common law marriage is illegal in New Jersey. In 1939, the New Jersey Legislature enacted N.J.S.A. 37:1-10. Under this statute, parties who wished to enter into a marriage in the Garden State had to obtain a marriage license. Anything other than this form of marriage was declared to be void – including common law marriages. Prior to this legislation, New Jersey recognized marriages that had come about via cohabitation and declaration. Although this would be prohibited after 1939, a couple could have a common law marriage prior to this legislation, if the relationship was established before the laws changed and there was evidence of cohabitation and a reputation in the community as a married couple.
Common law marriage was further prohibited under N.J.S.A. 2A:34-1, which was enacted in 1986. A Southern New Jersey couple, in a case called Barwick v. Barwick, believe that their relationship should be held in the same regard as a marriage, since they had the same intent as a married couple. The Appellate Division determined that common law marriage did not exist in New Jersey. As the court explained, "All the ‘marriage’ they intended was an ordinary domestic arrangement which has not attained the dignity of marriage." This echoes New Jersey law, which has flatly refused to recognize common law marriages.
Alternative legal forms of recognition in New Jersey
Aside from common law marriage, there are alternative legal arrangements that may be appropriate for couples in New Jersey. The key distinction is that these alternatives provide a contractually based right or status to an individual and are not dependent on whether the couple represents themselves to the general public as living in a married relationship.
Domestic Partnerships – Paterson/Egg Harbor are the two largest Municipalities in NJ that allow for domestic partnership registration.
Under the cited NJ Domestic Partnership Statute there are several eligibility requirements to qualify for a domestic partnership. Some of these requirements include:
If the above and additional requirements are met, the parties could complete the certified "Joint Affidavit of Domestic Partnership" and file an application with the New Jersey Department of Health to formally establish their domestic partnership.
Civil Unions
In 2006, civil unions were created under New Jersey law in response to the Vermont Supreme Court case of Baker v. State, 170 Vt. 194, 744 A.2d 864 (2000). In that case, the Supreme Court of Vermont ordered the legislature to extend the same rights and benefits that were granted to heterosexual-couples through marriage to same-sex couples. In response, New Jersey also enacted legislation for Civil Unions based on similar principles.
Similar to a traditional marriage, parties must both meet certain requirements in order to qualify for a civil union. Some of the requirements include: Parties must: Although some may claim that similar to domestic partnerships, civil unions are not equivalent to marriage.
What happens if you move to NJ
The treatment of common law marriages when a couple residing in another state that recognizes such a union relocates to New Jersey is decidedly uncertain, often leading to substantial litigation in the absence of clear, controlling authority. As previously noted on this blog, common law marriages are not recognized in New Jersey. Common law marriages that were lawfully formed in other states will be given full faith and credit in New Jersey courts. In those instances when a same-sex couple is married in a jurisdiction that recognizes same-sex marriage and they move to New Jersey, under the same full faith and credit doctrine, their marriage will be recognized as valid in New Jersey. Applying this logic, NJCP similarly believes that another state’s common law marriage will be recognized as valid in New Jersey, although there exists no controlling New Jersey authority on the issues.
When a couple who had formed a common-law marriage in another state relocates to New Jersey, the threshold question for resolving potential disagreements is whether the marriage was "solemnized". If the answer is yes, it will be treated as a valid marriage in New Jersey upon the couple’s relocation. Solemnization is the process in which a couple goes through a public ceremony, such as a civil or a religious ceremony, and typically involves the execution of a marriage license. Some ask the question of whether solemnization is truly possible for a common law marriage. A common law marriage may only be solemnized after parties have entered into the common marriage. Thus, if a couple moves to New Jersey and enters into a solemnized marriage, it will be legally treated as a traditional marriage, created by a solemnization rather than a common law marriage.
If the answer to whether the marriage was solemnized is no, one can read the Garden State’s general anti-common law marriage statute (N.J.S.A. 37:1-10) as eliminating the possibility of any recognition or validation of a common law marriage that was created in another state but not solemnized prior to the couple’s relocation to New Jersey.
In the absence of controlling authority , when considering the question posed above, the New Jersey courts follow the majority rule on the subject of the recognition of common law marriage formed in another state. The majority rule holds that neither solemnization nor approval is required for the validation of common law marriage. Some courts have only required a good faith finding that the marriage did exist in the foreign state without soleminization or curative approval.
In the 2006 case of Jones v. Hall, the Maine Supreme Court was faced with the issue of whether a common law marriage from Maine should be given full faith and credit so that it would be valid and enforceable in another state that does not recognize the institution (New Hampshire). In holding that the Maine common law marriage should be upheld in New Hampshire, the court noted that "it is a well-settled principle of law that marriage, in its statutory or common law form, is created and defined by the law of the state in which the marriage takes place and is generally valid everywhere unless absolutely prohibited by the public policy of the other state." Thus, even if a couple from Maine had married by common law in that neighboring state, their marriage would be upheld if it was entered into in good faith and was not deemed to violate the public policy of the subsequent relocating state.
In New Jersey, to nullify a marriage, a party must show that the marriage was invalid at its inception. In Jones v. Hall, the plaintiff argued that New Jersey’s prohibition against common-law marriage barred her from seeking alimony. The New Jersey court, however, in looking at the testimony adduced during the trial detailing the parties’ joint financial dealings, concluded that a common-law marriage existed between the parties and that the plaintiff was entitled to seek relief of alimony.
Legal advice and factors
Given the complexity of determining whether common law marriage was ever established in New Jersey, and the trouble that can occur if it is, it is wise to seek legal advice before marrying under these circumstances. An attorney will look at all the facts of your relationship and advise you on the impact they may have in terms of legal status to you and the person with whom you are considering entering into a union .
A couple who may qualify for marriage in New Jersey as common law spouses should contact an attorney if they meet the following criteria:
• They are receiving financial support from the other and one of them is not contributing income to their support
• If an emergency were to occur, neither spouse would be entitled to emergency medical care of the other
• One spouse is diseased and the other wants to inherit from his or her spouse
• If there is a problem with another public agency, the couple wants to present themselves as a legally married couple rather than as a domestic partnership or cohabitants
• One spouse wants spousal pension or health insurance benefits
• One spouse wants to file for marital property or family support
• One spouse is seeking to collect from or settle claims for the injured spouse, or a third party owes money that the couple believes should go to him or her
• It is simply not advantageous to present themselves as a domestic partnership or "living together"
• A couple who would otherwise qualify for a common law marriage does not want others to see them as married, but may need to file with a government agency that requires them to marry in order to gain access to benefits
• A spouse wants to avoid issues related to equitable distribution of assets — but the estate will have to pay inheritance taxes and/or probate costs.