What Constitutes Common Law Marriage?
Common law marriage refers to a situation where two individuals live together, hold each other out as husband and wife, and present themselves as a married couple and where the parties have not entered into formal marriage ceremonies and have not obtained a marriage license. Notwithstanding the lack of formality, in certain states, such a relationship can nonetheless be considered a marriage for legal purposes.
Pursuant to New Jersey law, there is no common law marriage. Thus, cohabitating individuals, regardless of the length of their relationship, cannot be recognized as legally married and therefore do not have any rights as set forth in the statutes pertaining to divorce. Notwithstanding the lack of a common law marriage in New Jersey , parties residing in another state wherein a common law marriage may be valid and who then subsequently reside in New Jersey may be afforded recognition of such relationship in the Garden State. In that case, the court will determine whether the common law marriage was valid in the other state and, if so, that common law marriage will be recognized in New Jersey and the parties will obtain the benefits of "traditional" marriage. Such benefits may include spousal support, entitlement to an equitable distribution of assets, child support, inheritance rights, presumption of legitimacy of children conceived between the parties, amongst others. Further, should one party withhold marital assets from the other party, the party seeking such remedy may still be entitled to the protections of a constructive trust despite the lack of a statutory marriage.
New Jersey and Common Law Marriage
Historically, the colony of New Jersey recognized common law marriages; however, in the 1871 case of McGuckin v. Emley, the New Jersey Supreme Court abolished the common law status, and thereafter, only terminated marriages performed under the laws of the State (N.J.S. 37:1-5). The original intent of this statute was to disfavor the then common practice of fiancés marrying in neighboring Delaware to evade the then strict marriage laws of New Jersey. However, the law evolved to a complete prohibition on all common law marriages.
Furthermore, in Sanchez v. Rent Stabilization Association of New York City, 609 A.2d 374 (1992), the New Jersey Supreme Court further held that not only are common law marriages prohibited in New Jersey, but also common law divorce. Thus, even if a couple from New Jersey creates a common law marriage in another state that does allow them, New Jersey Courts will treat it as a valid marriage.
Nevertheless, it should be noted that a common law marriage that is entered into by a couple domiciled in a different State in which they attempt to end their relationship by moving and establishing a new residence and domicile in New Jersey could be honored in this State and entitled to equitable distribution of assets during the period of cohabitation in New Jersey.
Alternatives to Common Law Marriage in New Jersey
Although it is no longer a legally recognized option, New Jersey residents may be interested in creating legal alternatives to common law marriages. For many years, unmarried couples enjoyed the benefits of common law marriage as a way to obtain legal recognition for their relationships, allowing them to enjoy the privileges of being married, such as health insurance, tax benefits, and property distribution rights upon the death or separation of a partner. New Jersey no longer recognizes this option, however, and residents must find other avenues to legally obtain these protections.
In the absence of a formal marriage, domestic partnership is available in New Jersey to same-sex and different sex couples who share some form of ongoing commitment. A domestic partnership is often used by people who are not comfortable with the idea of a marriage, but would like their partner to have the same rights as a spouse. For example, life partners may want to have the same rights regarding medical decisions, such as consent to treatment, access to medical records, and arrangements for end-of-life care. They may also wish to make financial arrangements for shared debts, joint ownership of properties and vehicles, and joint tax filings. Life partners typically seek these rights as well as others that are usually attached to a traditional marriage.
Like common law marriage, domestic partnerships have few restrictions. Any adult who is not married or in another domestic partnership, and who is not closely related to his or her partner, is eligible to file for a domestic partnership. This option is especially appealing to those individuals who do not meet the requirement of having been cohabitating for a year or more as a basis for a common law marriage.
Common law marriages have been illegal in New Jersey for over a century, and using a different name for the same arrangement does not change the situation. However, it is important for same-sex couples, as well as different-sex couples, who wish to enjoy the same benefits as spouses to understand their options. Because of the unique needs of each couple, there are many reasons why a domestic partnership may or may not be the best option. Some same-sex couples in particular prefer to enter into civil unions rather than domestic partnerships due to the extensive protections provided through the same rights that traditional marriage affords to heterosexual couples.
Ultimately, however, the decision of what kind of arrangement to enter into is a matter of preference. Each option has its own pros and cons and should be weighed carefully before a decision is made.
Safeguarding Your Rights Without Common Law Marriage
While common law marriage may no longer be an option in New Jersey, unmarried co-habitating couples do have options to protect their rights and interests in such matters as death, incapacity, and termination of the relationship: a Cohabitation Agreement and proper Estate Planning.
In a Cohabitation agreement, you can define your intent as to financial issues and your rights and responsibilities with regard to each other and your property. This is analogous to a pre-nuptial agreement. In addition, you would need to address issues related to your health care proxies and powers of attorney. If you were to become incapacitated , your partner would not have any formal right to make medical decisions for you without an advanced directive (or such authority under a properly drafted power of attorney). In addition, a properly drafted will would be necessary for each of you to ensure that your property is properly disposed of upon your respective deaths. You would also want to designate the proper beneficiary on your benefit plans and retirement plans, if you wished your loved ones to have access to such benefit plans and accounts upon your death.
If you entered into a Cohabitation agreement and set out these decisions through your estate plan, you would be protecting each other’s rights under the law and, if there was a dispute, would have documentation upon which to rely.
Myths About Common Law Marriage
One of the most enduring myths about common law marriage is that it exists in New Jersey. It does not. Another misconception is that you and your partner can create a common law marriage simply by declaring yourselves to be so. That is also false. You are not considered common law married even for purposes of dissolution of a union or divorce unless you can prove all the elements necessary for a common law marriage, which are discussed above. Myths perpetuated by co-habitation should be avoided, as they serve no useful purpose and often ascribed by unscrupulous individuals to gain an unfair advantage in the event that the relationship goes sour. It is critical that you know that the definition of common law marriage, and its requirements, vary from state to state and should not be assumed to exist in New Jersey.
Legal Help for Relationships in New Jersey
In addition to relationship education and counseling, couples facing challenges may be able to find legal support through family law attorneys in New Jersey. These professionals can provide guidance on a wide range of matters, including cohabitation agreements, divorce, custody, alimony, and child support. Whether seeking advice on a specific legal matter or simply wanting general guidance throughout their relationship, couples can find reliable, objective advice by working with a New Jersey family law attorney.
For couples who do not have the legal resources to hire an attorney, mediation services are available through many courts, county agencies, and family service organizations. In fact, mediation is required in many cases in which a couple has filed for divorce but has not yet attended family court mediation. The purpose of mediation is to help couples work together to resolve issues in their divorce before reaching the courtroom . When making use of court-ordered mediation sessions, couples are encouraged to attend each mediation session with an open mind, a willingness to compromise, and a desire to resolve conflicts peacefully. The mediator does not decide about disputes between the parties—she or he is an unbiased third party who works to facilitate communication between the two parties, allowing for a higher likelihood of resolution without the direct intervention of the court system.
Many agencies also offer legal aid to low-income couples in New Jersey. Through these programs, couples can find support for a range of needs, including divorce proceedings, child custody and visitation, domestic violence, stillbirth costs, terminal illness, and elder law issues. Legal assistance programs often include referrals to private attorneys, scholarships for law students, and representation through legal aid clinics. These resources are designed to provide compassionate support to vulnerable couples in New Jersey.