Common Law Marriage Explanation
Common law marriage is a type of marriage that exists without a formal ceremony or license, and it is based on the mutual agreement of the parties to be considered husband and wife. Common law marriage has a long history in the United States, dating back to the colonial times when it was widely recognized by the various colonies. Even after the American Revolution, it remained a recognized form of marriage in many states.
When it comes to common law marriage, there are some critical differences from statutory marriage. For example, common law marriages typically do not require any sort of filing or recording with government entities. Instead, the agreement to be married only needs to be made and evidenced through the conduct itself . This conduct can include living together, presenting as a married couple to the public, and sharing common financial accounts or property. However, the standard for finding a common law marriage varies from state-to-state, and it’s important for couples to understand the requirements in their specific state.
In Kentucky, as noted above, common law marriage is not recognized. However, the state does recognize common law marriages that were entered into before June 30, 1971, which is when the law changed. Kentucky residents who want to enter into a common law marriage should be aware that the law does not recognize such marriages today, and they should talk to an experienced attorney if they have questions about the repercussions of such a decision.
Common Law Marriage Legal Recognition in Kentucky
The legal status of common law marriage in Kentucky is as follows: Section 29 of the Kentucky Constitution will not permit the common law of England to be revived after its abolition in 1851, because under Section 58 of the Constitution, no wider rule of decision can prevail in the state than that which was established in 1851. The courts must apply only the Virginia rules that existed in 1776 when Kentucky separated from Virginia.
History in Kentucky—1860-2018
For most of Kentucky’s history, as a matter of statutory law, common law marriage was not permitted; however, in 1949, the Kentucky Supreme Court held that in certain circumstances a valid common law marriage could be considered where a couple had entered into a common law marriage in a state that recognized common law marriages and the couple thereafter moved to Kentucky. After that 1949 decision, the legislature passed a statute which appeared to abrogate the common law marriage decisions, and prohibited common law marriage in the future. The Supreme Court returned to this issue in 1982, and after reviewing the 1949 decision and the statute responding to it, concluded that the legislature did not change the law regarding recognition of common law marriage in Kentucky.
The 1995 case of Jones v. Sparks, 898 S.W.2d 193 (Ky. 1995), does not explicitly address the validity of a common law marriage under Kentucky law. The validly married couple in Jones was married in another state. The trial court treated the issue as an action for declaration of the validity of a marriage by the trial court, under KRS 210.290. The Supreme Court disagreed, reversing and dismissing the case because Jones and Sparks failed to demonstrate that the asserted marriage was invalid anywhere other than in Kentucky.
In 2018 the Kentucky legislature passed House Bill 65 to amend KRS 402.080, commonly known as the "Marriage Statute." Kentucky Senate Bill 9 sought to repeal the Marriage Statute and replace it with same-sex marriage language, but failed.
Historically, under the Kentucky common law, the technical statement of the rule was that there could be no valid marriage in Kentucky unless it was solemnized in accordance with Kentucky law. As noted in the cases mentioned above, the Supreme Court has repeatedly stated that its decisions do not explicitly rule on the validity of a common law marriage in Kentucky.
The circumstantial rule found in Jones v Sparks—that if the marriage is valid where it was entered into, then it will be valid in Kentucky—is a relaxation of the strict application of the common law rule. The circumstantial rule has been followed in a series of Kentucky decisions, although then the validity of the marriage has been at issue. However, the circumstantial rule does not appear to have been applied in cases seeking declaration that a common law marriage occurring in another jurisdiction is valid in Kentucky.
In 2004, the Kentucky legislature passed a statute that prohibited applications for licenses to marry by persons of the same gender. The Kentucky Supreme Court refused to extend the circumstantial rule to same-sex marriage because none were validly entered anywhere, and in 2015, the U.S. Supreme Court held in Obergefell v. Hodges that same-sex couples have constitutional rights which require states to license same-sex marriage and recognize same-sex marriages lawfully performed in other states.
In light of Obergefell, the Miller opinion had the effect of reviving any common law marriages in the Kentucky which had been deemed no longer to exist.
What if Your Common Law Marriage is From Another State?
In today’s global society, it is common and even expected for people to move states for work, school or other reasons. One important implication of this in the family law arena is how that works considering the effect of the Full Faith and Credit Clause. The full faith and credit clause is simply a provision in the Constitution that provides that every state must recognize the judicial decisions of other states.
Let’s say, for example, that a couple moves to Kentucky from a state where common law marriages are legally recognized. They have lived in Kentucky for several years. While living in another state, the couple established their marriage as a common law marriage, but they have not legally married in Kentucky. Therefore, if the couple were to divorce in Kentucky, the Court would recognize the couple as having been married to each other from the time that their common law marriage was valid in that particular state, until the present date, and would treat them as a divorcing couple in the same way as any other divorcing couple.
With a deeply ingrained history in region, law and culture, common law marriage is an issue that Kentucky family law attorneys frequently deal with. Because of the serious implications that common law marriage can have on your life, it’s important to understand the issues at hand.
Other Options Instead of Common Law Marriage in Kentucky
As discussed above, Kentucky currently does not recognize common law marriage either explicitly or implicitly. Furthermore, there are no domestic partnership or civil union laws on the state level.
While common law couples residing in Kentucky may not have a legally recognized relationship, this does not mean that there are no options available to them. They may wish to enter into a written cohabitation agreement outlining the rights and responsibilities of both parties. Provided this agreement is not itself contrary to public policy (i.e., providing for the voluntary termination of a pregnancy, etc.), many of the potential pitfalls of unmarried couples can be eliminated. This can be especially beneficial for younger couples who share residence but would not be eligible to marry even if they wanted to.
It should be noted, however, that if an unmarried couple wants to be able to create a family unit under the law (for example, to adopt a child of one of the partners), it may actually be more beneficial for them to enter into a marriage and establish its legitimacy.
Legal Entitlements and Duties
The legal rights and responsibilities in a common law marriage are generally treated the same as those in a statutorily recognized marriage. In Kentucky, however, resolving common law property issues can be particularly convoluted due to statutes of limitations or adverse possession laws. Kentucky courts have shown a tendency to favor stability and have denied parties the ability to trace marital property through another common law marriage entered into in a different state. As such, a Kentucky court will use what it looks to in addressing a common law property dispute are: a) whether property in one party’s name was purchased with funds from a common pool of funds, and b) whether the other party significantly contributed to the purchase of that property by act or investment.
In Kentucky , inheritance is similar to that of a statutory marriage when it is a common law marriage that has been recognized by another state. The caveat is that a party must be able to prove the existence of a common law marriage before moving forward with estate litigation, and then raising the issue is always subject to a statute of limitations. Regardless, if the decedent had a will, most of the issues of succession in a statutory marriage may also apply to a common law spouse. Likewise, child custody and support are treated similarly to marriages entered into under the common law. However, there is a strong rebuttable presumption, of which the courts are seldom if ever, willing to set aside that a child of a marriage is also a child of a common law marriage. The presumption places an even more demanding burden on a parent wishing to seek higher child support in his/her favor by appealing to the court to consider his/her non-marital role as sole custodian of the child.
How to Keep Your Rights as An Unmarried Couple in Kentucky
In the absence of the ability to obtain status as a common law married couple in Kentucky, there are other tools unmarried couples can use to help establish enforceable rights within the context of their relationship. For instance, if you and your partner reside together as a couple, you should carefully and faithfully draft a cohabitation agreement that will address how you and your partner will address issues such as ownership of property, division of property in the event the relationship ends, division of property in the event of death, bill payment, bank accounts and loans, purchase and sharing of property, actual or contingent liability for debts, inheritance, and payment of alimony or spousal support if applicable. You may also wish to include provisions as to what happens to your pets in the event one of you dies. The key is to address, as specifically as possible, the various aspects of your relationship and what you would like to happen if something were to occur that would impact that relationship. In addition to a cohabitation agreement, you and your partner should consider having Wills drafted. This way, if one of you – unexpectedly – dies in a sudden accident, you will know that the appropriate documents are in place to address the division of your property. As well, a Trust may be established to cover concerns that may be particular to your family situation. By being proactive, you can avoid future court litigation, and in the spirit of being prepared for the unexpected, you may find that the drafting of a cohabitation agreement and/or a Will can create a greater sense of security and peace of mind.
Final Thoughts
In summary, the concept of a common law marriage is not recognized under Kentucky law. However, this does not mean that common law spouses do not exist in Kentucky. It just means that the State of Kentucky does not recognize their relationship as a marriage. If you are an unmarried couple living together in Kentucky, there are a number of things that should be done to protect your interests. A contract between you and your partner outlining the property owned by each of you, the maintenance obligations of the other party, child custody and support obligations, etc . will help to alleviate confusion in the event of a separation or death of one of the parties. It can also serve as evidence for a claim of palimony (the supposed "common law spouse" must prove, however, that there was an oral or implied contract and that the relationship was meritorious). What is clear is that parties must be proactive in order to protect themselves and to preserve their rights in the event of a breakdown of a cohabitating relationship.