Common Law Marriage in New York

If you're in a common law marriage, that means that you and your spouse are legally recognized as married even though you never got a marriage license or had a wedding ceremony. But you'll still need to prove that you meet the requirements for a valid common law marriage. And these days, only a few states recognize common law marriage. Read on to see how New York State views common law marriages.

Does Common Law Marriage Still Exist in New York?

Common law marriage hasn't been legal in New York since 1933.

What Are the Legal Requirements for a Valid Marriage in New York?

You must meet all of the following requirements in order to be legally married in New York:

• You must be at least 18 years old.
• You may not be legally married to someone else.
• Your spouse may not be a close relative, such as a parent, child, brother, sister, aunt, uncle, niece, or nephew.
• You must obtain a marriage license.
• The marriage ceremony must take place no earlier than 24 hours after the license is issued and no later than 60 days afterwards.
• Someone who's authorized by the state to perform marriage ceremonies (such as a clergyman, judge, or town mayor) must preside over the ceremony.

(N.Y. Dom. Rel. Law §§ 5, 6, 11, 13, 13-b, 15-a (2023).)

When you apply for a marriage license, you'll have to present some form of identification, such as a certified copy of your birth certificate or a driver's license. If you were previously married, you'll also have to provide proof of how the marriage ended. You should contact your town or city clerk to see what documents they'll need in order to satisfy the state and local requirements.

The New York State Department of Health has more information on marriage requirements on its website.

Does New York Recognize Common Law Marriages From Other States?

If you've met the requirements for a common law marriage while living in another state, New York will recognize your relationship as a legal marriage. Under Article IV of the U.S. Constitution, every state must give "full faith and credit" to another state's public acts, records, and judicial proceedings.

How Can You Prove That You Have a Valid Common Law Marriage From Another State?

The rules for proving a valid common law marriage vary from state to state. So if you moved to New York after establishing a common law marriage in a state that recognizes these marriages, you should speak with a family law attorney from that state to learn how you can prove your relationship met the requirements.

That said, you'll typically need to prove that:

• you and your partner both agreed to consider yourselves as a married couple, even though you didn't get a marriage license or have a ceremony
• you and your partner have held yourselves out as spouses when interacting with others, which basically means you've behaved in a way that would make others believe you're married
• neither of you is legally married to someone else, and
• you and your partner have lived together in a ways that spouses normally do, taking on the mutual responsibilities and duties of married people.

There isn't one magic factor that automatically qualifies a relationship as a common law marriage. It's really how the couple generally live their life together that makes the difference.

What About Same-Sex Common Law Marriages?

Same-sex marriage has been legal in all 50 states since the U.S. Supreme Court's ruling in the Obergefell case in 2015. (Obergefell v. Hodges, 576 U.S. 644 (2015).) Other courts have held that this decision applies equally to common law marriages between same-sex couples.

What Rights Do Couples Have If New York Recognizes Their Common Law Marriage?

Once New York recognizes your common law marriage from another state as valid, you have the same rights and responsibilities as any other married couple, such as tax benefits and the right to inherit from your spouse's estate.

And if you want to legally end the relationship, you can't just walk away. You'd have to file for divorce. If you do get divorced, however, you have the right to an equitable division of your property and debts, and either of you may request alimony.

Note that even when your relationship doesn't qualify as a common law marriage, you might be protected by state contract or tort laws if you and your partner have other kinds of disputes (such as disagreements over property rights). And if you're a victim of abuse, it doesn't matter whether you have a valid common law marriage—you're still entitled to legal protection under New York's domestic violence laws as long as you've been in an intimate relationship with your abuser.

What Are Your Rights as an Unmarried Parent Without a Common Law Marriage?

If you have children but aren't in a valid common law marriage with the other parent, you still have rights regarding your kids. You're entitled to go to court to ask a judge to make decisions about child support, custody, and visitation. You also have the right to have the court determine paternity, if that's an issue.

Getting Help Proving You Have a Common Law Marriage

If you established a common law marriage while living in another state, the only way to have your marriage legally accepted in New York is to prove that you met that other state's requirements for valid common law marriages. That could be a daunting task, because a judge's decision on the issue will depend on the specific circumstances in your situation.

The exact evidence you'll need to prove you have a valid common law marriage will depend on the laws of the state where you established the relationship. But here are some general examples of evidence that may help:

• a written agreement or other document signed by both partners declaring your intention to marry
• affidavits (sworn written statements) or testimony in court from you or your partner (ideally both) swearing to the existence of your informal marriage, explaining the nature of your relationship, and describing actions you took that demonstrated your intention to be married (such as exchanging rings and celebrating anniversaries)
• affidavits or testimony from friends, family, or neighbors explaining their knowledge of your relationship, your living arrangements, and your reputation in the community as a married couple, including whether you participated in community activities as a family and referred to each other as "husband," "wife," or "spouse"
• financial statements from any joint bank or credit accounts
• tax returns that you filed as a married couple
• leases, deeds, or mortgage documents showing that you jointly held property
• insurance, employment, or other benefit forms or policies listing your partner as your spouse
• school records, birth certificates, or religious records like baptismal certificates that list both partners as a child's parents, and
• documents showing that you or your children assumed your partner's last name.

Even if you established your common law marriage in a state that's a significant distance from New York, it shouldn't be too difficult to get documents from the other state. But it could be problematic if the judge requires witnesses who live in the other state to testify in New York.

As you can see, proving the existence of a common law marriage can be a complicated process. So you'd be well advised to at least consult with a knowledgeable family law attorney if you're facing this challenge.