Common Law Marriage: The Myth that Keeps on Ticking

Posted By The Law Offices of Adelola Sheralynn Dow || 26-Sep-2018


As a young adult, I remember hearing about this concept of marriage which springs into existence based on two people residing together as “as spouses “for seven years or more. I remember first hearing of the concept when my mother described a relationship between a neighbor and her “common law husband”. She explained to me that people who lived together as spouses for seven years or more were married in the eyes of the law.

Going through high school and college, I continued to think that the concept was true. But my belief was undone during my second year of law school when I took a handy little course called Domestic Relations Law—the law of marriage and family in the State of New York. One of the first topics covered by the court was the solemnization of a marriage. Solemnization is the process of obtaining a legally binding marriage which meets your state’s requirements. My understanding was shattered when I raised my hand and asked why the concept of common law marriage was not listed within the statute. “Because it doesn’t exist” was my professor’s answer.

The professor went on to inform me that common law marriage had been abolished in New York back in the 1930’s, 1933 to be exact. So, there I was, in my professor’s class, almost 70 years after common law marriage had been extinguished, thinking that the practice still existed. Well, it doesn’t, at least not in New York – that is, unless you have been “common law married” in one of the few states which still recognizes the antiquated legal concept, which New York recognizes under the Full Faith and Credit Clause of the United States Constitution.

There are 50 states in our great union, yet only 16 of them, namely, Alabama, Colorado, District of Columbia, Georgia (if the marriage was created prior to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created prior to October 1991), Oklahoma, Pennsylvania (if created before September 2003), Rhode Island, South Carolina, Texas and Utah, still recognize Common Law marriage.

So, last week, when a prospective client came to my offices for a consultation regarding the rights she had after continuing to reside with her ex-husband (from whom she’d been divorced for over twenty years), I became sick to my stomach knowing the advice I had to give her. You see, she’d thought that, despite her very real, Court-granted divorce, the fact that she’d remained “married” to her ex-husband by holding herself out as his wife and engaging in the routine acts done by married couples, apart from commingling finances, she would be her ex-husband’s common law spouse.

Though it pained me to tell her that her thought was wrong, she was relieved to have closure in her new understanding of the law. I also had to tell her that the State of New York did not recognize the concept of Palimony either. Palimony is the concept which allows the financially supported partner of a long-term romantic relationship who financially relied upon the other to request continued financial support after the relationship has ended. New York does not recognize this claim. New Jersey does recognize the claim, although with significant limitations as a result of a recent change in the law.

So, if you are considering cohabitating with someone without the benefit of marriage, think very carefully about the consequences of doing so. Seek legal counsel so that you aren’t waking up twenty years later wishing that you knew back when! Get the information you need now to help you turn tomorrow’s fears into power when happily ever after fades away.

Categories: Family Law