If you live in New York, and you’re in a committed relationship but you haven’t had a wedding ceremony, you may be wondering if you and your spouse have formed a common law marriage. Common law marriage, unlike “ceremonial marriage,” is a special marital status that’s formed without a wedding service or a marriage license.
Common law marriage isn’t allowed in most American states, and New York abolished it in 1933. That said, some unmarried New York couples may have questions about whether they're entitled to marital rights.
Sometimes people think they’re in a common law marriage because they’ve lived together for a long time, they share the same last name, or because they have children together. But generally speaking, living together, using identical surnames, or having children isn’t enough to form a common law marriage.
Every state is somewhat different, but in the states that allow common law marriages, you’re only considered married if you can prove all of the following elements:
If you or your partner are still “hoping” to get married, or if one of you doesn’t believe that you're married yet, then you’re not in a common law marriage. Each of you has to intend to be married.
The case for common law marriage is strengthened when you can show that you’ve presented yourself to the community as being married. For example, you and your spouse might refer to each other as “spouse,” “husband,” or “wife” rather than “girlfriend” or “boyfriend,” or you might take other overt actions, like wearing wedding rings or naming each other as beneficiaries on insurance policies. However, no single action, viewed in isolation, is likely to be accepted as definitive proof of common law marriage. For the most part, a court trying to decide whether you’ve established a common law marriage will take into account a broad range of behavior over the course of the relationship.
In states that recognize common law marriage, common law spouses have most or all of the same legal rights and responsibilities as couples who marry traditionally. If a common law marriages ends, the spouses have to go through a formal divorce, divide up their assets and liabilities, and make decisions about custody and visitation, just like traditionally married couples.
If you’re not in a common law marriage, but you have children, you have other rights under the law. You’re still entitled to go to court and ask a judge to make decisions about paternity, child support, custody, and visitation. If you and your partner or ex-partner have other kinds of disputes, you may also be protected by state contract or tort laws. And if you are a victim of abuse or harassment, it doesn’t matter whether you’re involved in a common law marriage or not—you’re still entitled to legal protection.
Before you can marry, you have to personally go to a town or city clerk to get a marriage license. There’s a 24 hour waiting period to marry after you get the license, but if there’s an emergency, you can get a court order to waive it. Marriage licenses are good for 60 days.
You can only be legally married in New York if all of the following statements are true:
To be legal in New York, marriages have to be “solemnized” (or made official) by some kind of presiding officiant, such as a clergyman, religious minister, or civil official (like judges, mayors, city clerks, magistrates, or county executives). Both spouses have to sign a “written contract of marriage,” which creates a binding marriage agreement. The contract has to be signed by both spouses and in front of two witnesses. There’s no requirement for how a wedding is to be solemnized—New York law leaves that up to the couple. You could have an elaborate, traditional ceremony, you could ask a judge to simply sign the necessary documents, or you could do something in between.
New York’s lawmakers eliminated common law marriage decades ago, so you can no longer create a new common law marriage while you and your partner live in New York. However, if you meet the requirements for a common law marriage while you’re living in another state, New York may recognize your relationship as a legal marriage when you return to, or take up residency in, the state of New York. By recognizing valid marriages created in other states—including common law marriages—New York invokes and applies the “full faith and credit” clause of the United States Constitution, which says that that states have to respect the judicial decisions of other states, including marriages.
In practice, this means that if you spend time in a state that allows common law marriage, and if you wind up forming a common law marriage while you’re there, New York will respect your marriage. The legal particulars of forming a common law marriage vary from state to state. You have to enter into a valid common law marriage under a state’s laws before New York will give that marriage full faith and credit. For instance, if you and your partner lived in Colorado but you didn’t form a valid common law marriage while you were there, you can’t later come to New York and ask the courts to affirm or acknowledge your status as a common law spouse under Colorado law.
The only way to create a brand-new marriage relationship while you’re in New York is to pursue a ceremonial marriage and meet all the requirements.