Common Law Marriage: The Basics and Legal Definition
Common law marriage is a legal concept that exists when a couple has lived together and established a life as if they are married — despite never having participated in an official marriage ceremony. Essentially, it allows couples to be entitled to the same legal rights and benefits as if they had a traditional marriage without actually going through the official process .
To meet the requirements for common law marriage, certain general principles must be followed, including the following:
Generally speaking, you can think of common law marriage as a means through which the law allows cohabiting couples to become married without the need for traditional legal formalities, such as a marriage application, license or wedding ceremony. Common law marriage allows couples who do not technically fall within the legal definition of "marriage" to receive the same legal benefits as any other couple.
If you have additional questions about common law marriage in Kentucky or about whether it applies to you, it’s best to consult with an experienced attorney.
Does Kentucky Recognize Common Law Marriage?
The concept of common law marriage has long been viewed with curiosity and confusion, particularly in Kentucky where the debate surrounding its existence has been ongoing for decades. Under current law, Kentucky does not recognize common law marriages entered into after June 30, 1971, the date that the law in Kentucky changed from recognizing common law marriages to requiring a celebrant (a person authorized to officiate marriages) to solemnize a marriage, free of any legal impediments to doing so, and recording the marriage license with the county clerk.
Since that date, Kentucky has recognized common law marriages only under limited circumstances – if the common law marriage was formed prior to June 30, 1971 or if the 1971 law is found unconstitutionally vague and the courts permit a common law marriage to be formed after the passage of that law. The latter circumstance is unlikely. Given the restrictions placed upon common law marriages, it is not surprising that common law marriages are rarely recognized in Kentucky.
Between June 30, 1971 and 2019, Kentucky courts considered only two cases in which a common law marriage was addressed. In both cases, the courts noted that they were unable to discern the legislature’s intent in adopting the 1971 law. The court in In re Smith (1978) 563 S.W.2d 337, 338, reasoned that the legislature’s intent could be determined "only if we were prepared to conclude that the General Assembly intended to abrogate existing common law marriages and to bar the creation of all marriages ‘conducted by persons assuming the status of husband and wife . . .’" See also Jones v. Johnson, 97 S.W.3d 87, 90 (Ky.App. 2002).
Despite this uncertainty, Kentucky courts have narrowly defined the contours of what will constitute a common law marriage in Kentucky.
Brief History of Common Law Marriage in Kentucky
Common law marriages were legally personalized as early as the 1700s when England recognized them. Massachusetts, like most of the present-day United States, took the best of the English laws and instituted its own lines of marital law in colonial times. It was also the first state to abolish common law marriages, but at that time, in 1786, Kentucky hadn’t even become a state.
Common law marriages may seem like something out of a bygone era, since the last state in the U.S. to recognize them (Texas) abolished them in 2016. But according to the Kentucky Marriage Law Between Persons of the Same Sex, the Commonwealth still recognizes common law marriages.
Historically in Kentucky, common law marriages were recognized as long as they met certain criteria. In 1972, the state Supreme Court ruled that since common law marriages were allowed in most jurisdictions of the United States where the Kentucky courts looked for guidance, it would recognize such unions as valid. The court also noted that there was a practical business reason for so doing, since if it ruled otherwise, many married persons living in Kentucky could be citizens of another state and therefore the validity of their marriage licenses would be in doubt.
In 1851, a Kentucky statute required individuals seeking a license to marry to be examined by a minister or preacher, along with the individual’s intention of entering into marriage. This early statute laid the groundwork for the modern marriage license and certificate requirement.
It took 122 years, just two years before the Kentucky Supreme Court ruled in favor of common law marriages, for the General Assembly to respond. In 1973, the Kentucky Legislature passed KRS 402.050, which revoked common law marriages as of July 1 of that year or 60 days after a ceremonial marriage, whichever came first. Now individuals could only be married with a license issued by the local court clerk.
However, Kentucky decreed that common law marriages created before that date still could be recognized. Kentucky generally held that common law marriage would be valid so long as the union was recognized by the parties and the nature of the relationship was not hidden from relevant persons.
Any attempt to establish a common law marriage must establish that the parties intended to be married and lived together as spouses (not just roommates or friends). But this requirement does not contemplate any prescribed time of cohabitation, so the couple might have lived together in a common law marriage for just a few weeks. But if they took no concerted action to create or establish a divisible property (home, insurance policy, bank account, etc.), the relationship ended, or they moved to another state, the qualifications have been met to fully establish a common law marriage.
Legal Alternatives to Common Law Marriage in Kentucky
Kentucky law does recognize certain domestic partnerships between same sex couples, which extend a level of rights and responsibilities similar to marriage. However, Kentucky does not create a legal status for opposite sex couples that desire a plan for their life together but do not choose to formally marry.
An alternative is a cohabitation agreement. Cohabitation agreements are contracts between two people who live together that set forth each person’s rights and responsibilities. The parties can agree on everything from who will pay the bills to how the property will be divided in the event of a future separation. Most incidents of cohabitation between unmarried individuals occur without any written agreements or rules, leaving disputes likely if the relationship should end. A properly drafted cohabitation agreement gives the parties the protection of the contract, while allowing them to administer their affairs and avoid costly disagreements. Another legal alternative is a life estate, which allows one individual to transfer property to their partner, while retaining certain rights and control over the property. The estate passes to the surviving partner upon the death of the primary owner, creating some of the same benefits and moral authority of marriage.
The Treatment of Out-of-State Common Law Marriages
The situation further complicates itself when individuals with a common law marriage in another state relocate to Kentucky. While Kentucky does not recognize the formation of any new common law marriages, it does recognize the validity of common law marriages created in jurisdictions that do allow this alternative form of union, going all the way back to the 1st of January, 1958.
Essentially, this means that a common law marriage which is valid in any other state is acknowledged in the Commonwealth of Kentucky. This is true even if the couple established residency in that other state prior to January 1 , 1958 and then moved to Kentucky.
The recognition of out-of-state common law marriages is rooted in the doctrine of comity, which generally refers to the extended courtesy of one state to the laws and judicial decisions of another state. Of course, a legal marriage is only considered valid in Kentucky if it meets the legal requirements of Kentucky Law. Under this doctrine, Kentucky must recognize all legal marriages performed in other states.
Common Law Marriage FAQs
1. Q: Does Kentucky recognize common law marriage?
A: No, Kentucky does not recognize common law marriage. In 1971, the Kentucky legislature passed a statute that abolishes common law marriage in the state. Since that law passed, common law marriages entered into after June 30, 1971 are not valid in Kentucky.
2. Q: If I entered into a common law marriage in a different state, am I entitled to any rights in Kentucky?
A: It is complicated. Although Kentucky no longer recognizes common law marriage, if your common law marriage was validly entered into in another state and if that state permits recognition of common law marriages entered into elsewhere – like Tennessee does – then that marriage may be recognized in Kentucky.
3. Q: Is there such a thing as a common law divorce in Kentucky?
A: No. There is no such thing as a common law divorce in Kentucky. Because common law marriages are not recognized as valid in Kentucky after June 30, 1971, they are dissolved, subject to any property settlements and court orders made at the time of the divorce.
Advice and Resources
The Kentucky Bureau of Vital Statistics provides a valid list of licensed family law attorneys in Kentucky on their website. This resource can serve as a valuable tool when searching for an attorney regarding the issues of common law marriage or divorce. Not to mention that there are a host of resources available online at little or no cost. A basic internet survey can provide a wealth of information about the legal validity and process, answers to questions, and will likely connect you with a family law attorney or two in your area of Kentucky.
There are several types of legal aid facilities throughout Kentucky. They help clients who qualify with affordable answers to everyday legal needs. In several blogs and news releases , Legal Aid of the Bluegrass notes that 25% of its family law representation relates to the issues of divorce or dissolution of marriage, paternity, domestic violence, and nonpayment of child support in Kentucky courts. Forms and instructions for filing your own motion for child support can also be found online.
Most of us can not afford to hire a lawyer. A local law school may exist in your area. There are also several legal aid clinics in the Lexington area that operate weekly where attorneys are made available for free legal consultations.