A “common-law marriage” refers to a long-term relationship, where the couple has shared a household together, and acted as husband and wife (eg., held themselves out to the public as a married couple and referred to their partner as husband or wife), but never obtained a marriage license or had a marriage ceremony.
Previously, in many states including New Jersey, “common-law marriage” was considered to be the legal equivalent to marriage, with all the same legal rights and obligations that applied to officially married couples.
No. In 1939, New Jersey passed a law that eliminated common-law marriage. Any common-law marriage entered before December 1, 1939 would still be considered valid, but not going forward.
For the full text of the law abolishing common-law marriage in New Jersey, see N.J.S.A. 37:1-10.
To be considered “married” in New Jersey, a couple has to obtain a valid marriage license and have a ceremony performed by an authorized person, society, institution, or organization to solemnize the marriage. The failure to obtain the license or hold a ceremony means the marriage is void (invalid).
What does all this mean for rights of unmarried couples that live together? Well, the answer to that question is a bit complicated, and depends on the right(s) you seek to enforce.
In New Jersey, you can’t acquire the same rights as a married couple by living together for a particular period of time. The laws that apply to divorcing couples don’t apply to unmarried couples when they breakup. For example, there are specific laws that allow divorcing spouses to receive alimony, as long they meet various requirements, including a financial need. However, unmarried partners can’t ask for financial support under the same legal framework.
Similarly, the “equitable distribution” laws that apply to the division of property in divorce don’t apply to the division of property between long-term, unmarried partners.
Instead, these types of financial issues for unmarried couples are decided on a case-by-case basis in a court of equity (fairness). The outcomes are unpredictable, but the sections below will provide some guidance on how these issues may be determined.
“Palimony” is financial support that an unmarried person may request from his or her long-time partner once the relationship between them comes to an end. In addition, palimony claims can be brought against the estate of a deceased person, where the long-time partner asks for financial support after the death of the other partner. Basically, it’s the unmarried person’s version of alimony.
Prior to 2010, New Jersey courts routinely recognized so called “palimony claims” and awarded long-term partners financial support after the end of their relationship. However, the ability to request palimony was restricted in January of 2010 when the New Jersey Legislature enacted an amendment to its “statute of frauds” law (the law that identifies what types of agreements must be in writing). The new law states that a promise to pay palimony is not valid, unless it meets the following requirements:
The law also says that “no claim shall be brought to court” for palimony unless the agreement is in writing.
Despite this, it appears that after the January 2010 amendment, some New Jersey courts continued to allow certain palimony claims, with no written agreements, to go forward where, for example, the promise was made or the right to palimony arose before the 2010 law was enacted. However, it's not clear how long New Jersey courts will continue to consider palimony requests based on nothing more than an oral promise, or based strictly on equitable considerations.
The application of this law to palimony claims is not yet settled in New Jersey, and litigation continues to rage over whether this law should be applied only prospectively (to post-2010 cases), or whether it should also apply retroactively.
If your long-term partner agreed to provide you financial support in the event of a breakup, or upon his or her death, you may want to speak to an experienced family law attorney to determine whether you and your partner should put the agreement in writing.
Because there is so much uncertainty regarding current claims for palimony in New Jersey, it’s a good idea to consult with a local attorney if you are seeking or defending against a claim for palimony.
Ordinarily, the “equitable distribution” of property arises only in divorce cases. So, when courts are asked to divide property between unmarried couples, they will have to rely on their general powers of fairness to reach a just decision.
Although there isn’t a specific set of factors courts must consider to divide property between unmarried partners, a few New Jersey cases indicate that judges might look for the following:
If the court finds that unmarried partners engaged in a “joint venture,” they may be able to pursue a claim for “partition” (a request that a court divide property) in the appropriate New Jersey family law court, which is called the “Chancery Division.”
Again, courts have a lot of discretion on how to divide property, but generally, courts will divide the property equally or in some other way that’s fair. Where actual division of property isn’t practical, the court may order that that property be sold and the net proceeds be divided equally, or in some other way that’s fair under the circumstances of the case.
As you can see, outcomes can be very unpredictable. So, if you’re in a long-term, unmarried relationship, and have amassed significant property with your partner, you may want to speak with your partner about how property should be divided in the event your relationship ends.
In order to fully protect your rights, you should probably put your agreement(s) in writing, and have these agreements reviewed by attorneys. If that’s not possible, and you and your partner breakup and can’t agree on how your property should be divided, you may have to go to court, and ask a judge to decide.
For the full text of the law prohibiting oral palimony agreements, see N.J.S.A. 25:1-5.
For a recent case denying a claim for palimony with no written agreement, see Cavalli v. Arena, (2012) 425 N.J.Sup.Ct. 595.
For a discussion of partition of property between unmarried partners, see Mitchell v. Oksienik, (2005) 380 N.J.Super.A.D. 119.