Common Law Marriage Explained
Common law marriage is, quite simply, a marriage in which the husband and wife do not go through any formal ceremony to get married. Rather, they simply "hold" themselves out as a married couple by living together, having sexual relations and acting as though they were married, despite never going through a public ceremony such as a wedding. Common law marriages are not a religious type of marriage, but rather, a civil marriage. The parties must express their intention to be in a marriage together and live together in the state to qualify for a common law marriage. Therefore, a common law marriage is determined by the intent of the parties to it, and it can be formed by the conduct of the parties showing the intent to form the marriage.
Common law marriages existed back in the early European commonwealth countries such as England, Scotland, and Ireland . It was a custom during the late 12th century in England that parties could be married by simple mutual consent of two individuals. No formal license or civil ceremony was required to validate this method of contract. In the U.S., the prevalence of common law marriages has decreased, as most states now have statutory requirements that must be met to obtain a legal marriage. Since the later part of the 20th century, only 9 states still allow common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and the District of Columbia.
Kentucky does not have common law marriages. However, those parties who were married through common law and still reside in Kentucky may be able to benefit from the divorce laws in Kentucky as long as that marriage is valid in the state in which it was created.
Kentucky Common Law Marriage
Kentucky does not recognize common law marriage. However, if you are married in another state that does recognize common law, that marriage would be valid in Kentucky. The process of dissolving a marriage entered into in a sister state would be carried out in Kentucky, but the important fact is that Kentucky does not recognize common law marriages entered into within the state.
Common Law Marriage From Other States
In considering validity of a common law marriage, Kentucky courts will look to the law of the state where the marriage was established. So, for example, if Jack and Jill were living in Colorado and met all of the requirements for establishing a common law marriage there, and then moved to Kentucky while still married, the marriage would be recognized as valid in Kentucky. Kentucky has no law on the books dealing with common-law marriage, except that the law specifies that a common-law marriage can be reformed or dissolved like any other marriage. Medley v. Commonwealth, 164 S.W.3d 606 (Ky. 2005). At least one Kentucky appellate court case has held that a marriage properly established under Colorado law is valid in Kentucky when the parties had established their common law marriage in Colorado even though they subsequently moved to Kentucky. Baker v. Baker, 268 S.W.3d 900 (Ky.App.2008).
What Does This Mean for You and Your Partner in Kentucky?
It is intriguing to think that a couple who considers themselves married under common law may not be considered married in the eyes of the law. However, the consequences of this assumption can have a serious impact on couples in Kentucky.
The legal protections that would apply to those who are married may not exist for couples who believe they are married under common law. For example, in the event that a couple chooses to live apart, only couples who are legally married have the right to financial support from their partner. The enforcement of property division or spousal support orders would be compromised in the absence of a divorce proceeding that declares the marriage over.
In fact, if one partner in a common law marriage has earned a sizable estate, he or she can use that fact against the other partner in the event of a relationship break-up. There is no way to legally challenge the estate of a common law partner as it is not eligible for inheritance rights or property division.
As people amass wealth with time, the laws have evolved to allow for the distribution of property and earnings in the event of a divorce . A common law marriage impairs this ability, which places the financially disadvantaged partner at an unfair disadvantage. As a result, many people will enter into prenups or postnups to protect their assets.
Likewise, if a couple is married under common law, spouses are not automatically entrusted to make financial decisions for each other. This is problematic in the absence of estate planning, which can create a significant amount of stress if partners pass away within a short time of each other. A spouse generally has the power to make medical decisions for his or her significant other. However, many medical questions can become complicated when a same-sex couple is involved and if the partner is not registered as the spouse of the patient.
Married couples are granted special rights for the purposes of taxes, property division, and estate planning. For this reason, it is imperative that unmarried couples who hope to be married under common law pursue other legal measures in order to avoid the pitfalls.
The Alternatives To Common Law Marriage In Kentucky
While Kentucky no longer recognizes common law marriage, that does not mean that unmarried couples have no options available for legal recognition of their relationships. Couples may pursue a domestic partnership arrangement or enter into a contract to establish and recognize their legal rights. Domestic partnerships are often offered by cities, counties, or employers, and do not require the parties to be same-sex or related. Contracts delineating legal rights are also enforceable in Kentucky if sufficiently specific, as long as the agreement does not violate any statutes or public policy. However, to be most effective, unmarried couples in Kentucky should seek to make use of such agreements with the guidance of an attorney experienced with LGBT or non-traditional marriage contract issues.
What You Need To Know About the Legalities for Unmarried Couples
Regardless of the lack of recognition of common law marriage, there are important estate planning and other legal issues that unmarried couples should consider taking care of. For instance, unmarried couples may want to consider preparing a cohabitation agreement to set forth some of the rights and obligations of each in case things do not work as planned. If there are children of the relationship, also prepare a plan for health care decision-making for the child in case one parent is incapacitated and make sure both parents have their names entered into the Kentucky putative father registry.
Unmarried partners should plan for what happens to their "marital" property rights or interests in the event of separation or death. In Kentucky , property acquired by a partnership may be jointly held with all property owned by each party being "marital property." In these instances, if the parties separate or one dies, the equal division of that property may not occur unless ordered by a Court. These plans may include naming each other as executive or successor executor of each of their wills, if one or the other should die.
Also, with a cohabitation agreement, the parties may be able to set forth property rights or interest in property to go to either in the event of separation or death. While "general" Kentucky law may not recognize this partner’s generally-held understanding under common law, a contract, such as a cohabitation agreement, may be enforceable under contract law as long as the agreement does not violate public policy.