Getting a Common Law Marriage Recognized in a Non-Common-Law State

By Benjamin Wolf

July 2, 2012

The majority of states have laws providing that marriages are only recognized when created with a marriage license and official marriage ceremony. Such laws are very important because many rights depend on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property upon divorce, and only a husband will inherit from his wife if she dies without a Last Will and Testament.

Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. Such situations are referred to as “common law marriages.” In these cases, the parties will have marital rights only if their common law marriage is recognized under state law. The states that recognize common law marriage include Pennsylvania, Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio and Florida.

New York’s Recognition of Out-of-State Common Law Marriages

Although the State of New York has abolished common law marriage, the state may still recognize common law marriages established in other states pursuant to the “full faith and credit” clause of the U.S. Constitution. For instance, if a common law  couple lives in New York and merely vacations briefly in Pennsylvania, a state that recognizes common law marriage, New York State courts may very well recognize the marriage as valid because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”

Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.” Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.

Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage.

Common Law Marriage Under Pennsylvania Law

“A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.” “Present tense” means that there must be evidence that the couple made a verbal commitment to enter a marriage at the time of that verbal statement.

Where one or both of the parties are unable to testify that words were spoken in the present tense to create a marriage, Pennsylvania law creates a rebuttable presumption that a common law marriage exists if the party alleging the existence of the common law marriage offers “sufficient proof” that the couple was (1) in constant cohabitation and (2) had a reputation of marriage that “is not partial or divided but is broad and general.”

Interestingly, in September of 2003, the Commonwealth Court of Pennsylvania in its PNC Bank decision purported to abolish all common law marriage going forward. However, other Pennsylvania courts may not be bound by its decision, and the Supreme Court of Pennsylvania declined to abolish common law marriage, deferring that decision to the legislature.

But even assuming that the PNC Bank decision were binding, many common law marriages will still survive. If the facts that gave rise to the common law marriage took place before September 13, 2003, when PNC Bank was decided, the marriage would still be valid. This means that if the couple made private statements creating the marriage, cohabited in Pennsylvania, and had the general reputation of being married prior to September 13, 2003, then their common law marriage would still be recognized under Pennsylvania law, even if PNC Bank were binding precedent.

Conclusion

If a couple has (1) made statements to each other to create a marriage, (2) lived together continuously (and at least temporarily on vacation in a state like Pennsylvania that recognizes common law marriage), and (3) has held themselves out and has had the reputation generally of being husband and wife, then New York Courts may indeed recognize their marriage as valid for the purpose of equitable distribution in divorce, a spousal share in an estate, and many other purposes.

Benjamin Wolf is a Law Clerk at The Law Offices of Elliot Schlissel, a multi-service law firm serving clients in the five boroughs of New York City, as well as Nassau,  Suffolk, and Westchester counties.

Sources

Carpenter v. Carpenter, 617 N.Y.S. 2d 903, 904 (N.Y. App. Div. 2nd Dept. 1996)

In re Landolfi, 727 N.Y.S. 2d 470, 472 (N.Y. App. Div. 2nd Dept. 2001)

Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (1998).

PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1272 (Commw. Ct. Penn. 2003).