Does NJ Accept Common Law Marriage?
No, common law marriage is no longer recognized under New Jersey law. Under G.S. 37:1-10 it is provided that the Legislature did thereby "abolish all forms of marriage in this state except the marriage solemnized in the usual way by a rabbi, clergyman or minister of any religious denomination or by any other person authorized by the laws of this state to perform marriage ceremonies." In Adams’ Executors v. Adams’ Administrators, 2 N.J.L. 198; 3 Halst. 325 (Supreme Court 1796), Chief Justice Hornblower stated, "in this country marriage is a civil contract, and may be entered into in accordance with the forms which the respective legislatures shall from time to time prescribe . " However, the issue of common law marriage became a matter of great controversy in the 1940s, when there were three decisions by our Supreme Court for differing reasons holding it to be the law in this state. See Smith v. Smith, 19 N.J. 561 (1955); Klumbie v. Horan, 19 N.J. 359 (1955); and Rierte v. Rierte, 19 N.J. 349 (1955). For reason of adverse public policy enunciated in Smith, supra, the Supreme Court in Smith overruled its opinions in Klumbie and Rierte thereby finally disposing of the common law marriage question for this state.
History of Common Law Marriage in the United States
Though associated with Medieval England, common law marriage as a judicial concept appears to have originated in Roman-Dutch law that was carried over during the colonization of America. An early example is Van v. Van Zuth, 1 S.C.L. 293 (1705), where the owners of a plantation in South Carolina sought a divorce from a Dutch law court so that one of the owners could marry another woman. The court found that the parties had been married under the principles of Roman-Dutch law and granted their divorce without regard to common law principles. It also referred to English law on the issue of whether or not the parties were married.
After the establishment of the United States as a sovereign nation, the states became free to legislate marriage issues. States that were settled first by the Dutch retained aspects of Roman-Dutch law. Indeed, only a handful of states retain the notion of common law marriage as a result of English and early Roman-Dutch law. Most of the states that retained some form of the concept actually legislated the requirements necessary for a couple to establish a common law marriage, which really diverges from the original notion.
In New Jersey, the concept of common law marriage was regularly applied until the mid-19th Century, primarily because of the transient nature of individuals living in the state during that time period. The New Jersey Supreme Court even found that common law marriages may have been recognized when a couple was married before moving here, though he opted not to pass judgment on this issue at the time. It was not until long after that the Legislature abolished common law marriage by statute. In other jurisdictions, the notion has been codified, has been limited to certain situations such as for the purposes of workers’ compensation, and has generally been changed to something else entirely.
Exceptions to Common Law Marriages in NJ
Alternatives to common law marriage exist in the form of legally recognized cohabitation. For those who do not wish to marry but would like to have their relationship recognized, the State of New Jersey has provided options for alternative designations based on the couple’s circumstances. The New Jersey Domestic Partnership Act enables a couple to enter into a civil union. The following criteria must be met to establish a domestic partnership:
- At least one person is at the age of 62 or at least one person is of childbearing age.
- Both parties are aware of the intended purpose of the partnership.
- Both persons are capable of consenting to the relationship.
- Both partners are members of the same sex or the female of childbearing age is a surviving spouse or partner of another deceased woman with whom she conceived a child.
- Both persons are otherwise legally able to enter into a domestic partnership and not obtain a marriage license.
Co-habiting heterosexual couples should consider entering into a Domestic Partnership for a clearer path to creating a legal relationship. The Domestic Partnership Act may provide rights of inheritance and property division which may not be available under a non-legal relationship. While legal protections are not as comprehensive as those of marriage, they do extend legal rights that otherwise may not be available to unmarried couples living together.
Consequences of Non-Recognition
Separately from the issue of palimony (which was banned by the New Jersey Supreme Court in its ruling from 2010), there are other significant legal issues that can arise when two people are under the false impression that they are in a common law marriage, or might believe that they have a common law marriage.
First and foremost are issues relating to the property and assets earned or acquired by a couple during their time together. The lack of a common law marriage could mean that a person is not entitled to any of the property accumulated by the couple while living together. For example, imagine a scenario in which one person may have contributed a greater amount toward the purchase of a home that was purchased while the couple was living together for several years. In such a situation, a person might reasonably expect to receive an equal share of the house when the relationship ends. However, if a court determined the couple was not legally married , that person may receive little or nothing. They could even be forced to leave the home on short notice should the other party decide they want to remain there and will not buy them out.
The income tax implications for unrecognized common law marriages are another issue to consider. The IRS does recognize common law marriages, though only in certain states. However, the state of New Jersey does not, even if the couple believes it does. For many other states, taxpayers can simply choose to file their taxes as "married." A couple in New Jersey that finds themselves in such a situation, however, might not be able to file their taxes as married, or would face additional complications when filing.
What about child custody and support issues? Common law couples could also face complex and difficult custody matters. If their relationship ends and they are not considered legally married, they will each have to seek either joint or sole legal custody through a court of law. A divorce action will not be available to them.
Like any relationship, common law marriages can end quickly or slowly. The impact on a person who incorrectly believes they have a common law marriage with someone, however, could have a lasting impact on their emotional and financial stability.
How to Legitimize Your Relationship in NJ
In New Jersey, the best way for a couple to ensure their union is recognized as legal is to obtain a marriage license. There are no residency requirements to obtain a marriage license in the State of New Jersey. The first step in obtaining a marriage license is to apply at your local registrar’s office. All couples must appear in person to apply for the license. Once you complete the application with the registrar and pay the licensing fee, you will have to wait at least 72 hours before the license is issued. All applications for marriage licenses in New Jersey that are made otherwise than in person are absolutely null and void. You will be required to show a government-issued form of identification to the registrar’s office.
Once the license is issued, there is no waiting period before getting married, and it is considered valid for between 30 and 6 months. If you are not a resident of New Jersey, you cannot be married in New Jersey until you have obtained your license. Also, foreign citizens are required to present identification to the registrar, which can be important if you are a mixed-citizenship couple.
Couples who opt to legalize their union will enjoy many legal benefits, including tax benefits, estate planning benefits, Social Security survivor benefits, health insurance benefits, and more. By contrast, if a couple chooses to live together in a common law marriage, they likely do not have the same legal protections, such as joint health insurance and social security benefits in the event of a spouse’s death.
Tips for Unwed Partners
In New Jersey, a common law marriage will not be recognized regardless of how long two people may have been living together as a married couple. Nonetheless, this does not mean that New Jersey law provides not protection for unmarried couples.
The courts will consider issues concerning equitable distribution of property and spousal support of cohabiting parties on a limited and discretionary basis in New Jersey. Parties previously in a long term relationship could have a claim for equitable distribution of property at the breakup of their relationship in New Jersey, if they can show the court that the long-term relationship has a constructive trust, e.g., through an oral or implied agreement that is enforceable because of unjust enrichment on one of the parties. Generally, a cohabitant will need to show that: 1) he or she has conferred a measurable benefit on the other; 2) the benefit was shown by clear and convincing evidence; 3) the conferring party expected compensation; 4) the other party would be unjustly enriched if not required to compensate the conferring party.
Although general equitable distribution laws do not apply to unmarried couples , support matters for unmarried cohabitants are more likely to be considered by New Jersey courts. A party seeking support from a former partner can obtain an order for specific temporary support under the court’s exclusive continuing jurisdiction during the pendency of an actual or threatened dissolution of the relationship that is based on the needs and circumstances of the requesting party.
Cohabiting parties in New Jersey may have executed written financial agreements for purposes of defining their finances, including premarital agreements, antenuptial agreements, and cohabitation agreements. This can allow the couple to make provisions for equitable distribution and support obligations in the event of separation. Cohabitation agreements are not applied to marriages or civil unions and are subject to contract law standards. The agreement is enforceable if: (1) it is in writing and signed by the parties and (2) consideration has been given. A cohabitation agreement is subject to general contract requirements and rules including the ability of the parties to contract under state law, voluntariness, adequate consideration, mutuality of obligation, legality of purpose, and permissible legislative public policy.