Keith Mack
Common-law marriage, sometimes called de facto marriage, occurs when a couple agrees to be married and presents themselves as such to their community without the need for a formal, state-sanctioned ceremony. In the past, Kentucky recognized common-law marriages contracted within and outside the state. However, as of 1852, Kentucky no longer recognizes common-law marriages originating within the state. Couples who previously had a common-law marriage in Kentucky were required to take legal marriage vows to maintain their relationship status. While Kentucky does not recognize common-law marriages formed within the state, it does recognize those formed in other states that permit it. Unmarried couples in Kentucky, including those in a common-law marriage from another state, do not have the same property rights as legally married couples, but they can pursue child custody and child support orders in family court.
| Characteristics | Values |
|---|---|
| Common law marriage recognized | No |
| Legal requirements for marriage | Marriage license and legal ceremony |
| Property rights for unmarried couples | No |
| Child custody and support for unmarried couples | Yes |
| Common law marriage from other states recognized | Yes |
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What You'll Learn
Kentucky does not recognize common-law marriages
However, Kentucky does recognize common-law marriages that are valid in the state in which they were contracted. This is due to the Constitution's "full faith and credit" clause. Therefore, if you were considered common-law married in another state, you will automatically maintain your common-law marriage status when you move to Kentucky.
It is important to note that couples in Kentucky who claim a common-law marriage do not receive the same legal rights and protections as legally married couples. For example, property rights do not exist for cohabiting couples, even if their relationship closely resembles a marriage. Similarly, child support and custody rights do not apply to children of unmarried couples, even if they are married under common law.
If you are in a common-law marriage in Kentucky, a divorce might not be an option for ending your relationship. However, you may still have to initiate a common-law separation or file for divorce if your relationship originated in a state that recognizes common-law marriage. Additionally, you can seek family court orders after breaking up with a live-in romantic partner if you need legal help with child support or child custody.
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Legal rights and protections for cohabiting couples
Kentucky does not recognize common-law marriages contracted within the state. However, the state does recognize common-law marriages that are valid in the state in which they were contracted.
Property Rights
Kentucky courts have ruled that property rights are not granted to cohabiting couples, even if their relationship closely resembles a marriage. This means that property acquired during the relationship will not be divided equally if the couple separates. In such cases, unmarried cohabitants must look to contract, business, or partnership laws to protect their property.
Child Custody and Support
Although child support and custody rights do not apply to children of unmarried couples, the court can still make decisions regarding child custody, visitation, and child support. An unmarried cohabiting parent can petition the court for sole or joint custody, request or terminate formal timesharing, or award, modify, or terminate an existing child support order.
Cohabitation Agreements
To avoid expensive and lengthy legal battles, cohabiting couples can create a cohabitation agreement that establishes expectations during the relationship and outlines what would happen in the event of a breakup. This agreement should address separately-held property, joint finances, assets, and debts, as well as how children will be cared for and who will have custody in the event of death.
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Child custody and support for unmarried couples
Kentucky does not recognize common-law marriages. Couples must obtain a marriage license and have a legal ceremony to be considered legally married in the state. Simply living together and presenting as a married couple does not establish a valid marriage under Kentucky law.
However, child support and custody rights are identical for married and unmarried couples in Kentucky. When unmarried cohabitants have children, the laws pertaining to child custody, visitation, timesharing, and child support are the same as those for married couples. This is because the laws focus on the child rather than the parents' relationship status and seek to achieve resolutions "in accordance with the best interests of the child."
When a child is born to unmarried parents in Kentucky, paternity must be established before the father has any rights to visitation or custody. If a man is listed on the child's birth certificate, the court assumes he is the biological father. Another option is for both parents to sign a Voluntary Acknowledgment of Paternity (VAP), after which the father can request visitation, child support, and/or custody. If the father is not listed on the birth certificate, paternity must be established through genetic testing, and the court will then make a judgment on paternity.
In custody matters, unmarried parents may seek sole or joint custody. Sole custody is typically granted when one parent provides a more stable home environment, has the means to better support the child, or if there is proof of substance abuse or domestic violence involving the other parent.
In many situations, the courts will rely on the Kentucky Child Support Guidelines to determine the proper amount of child support. In other cases, under certain circumstances, such as when the parents' combined income exceeds the uppermost levels of the child support chart, the court may deviate from the guidelines.
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Property rights for unmarried couples
Kentucky does not recognize common-law marriages contracted within the state. This means that unmarried couples living together do not enjoy the same rights and protections as married couples regarding property or inheritance. Kentucky courts have explicitly stated that intimate unmarried relationships, even those that are long-standing and committed, do not give rise to property rights equal to those enjoyed by married persons.
In Kentucky, the legal difference between married and unmarried cohabitation becomes most apparent when the relationship ends, either through death or termination. For example, inheritance laws give married spouses specific rights to inherit from their spouse's estate upon their death, which do not apply to unmarried couples. Without specific estate planning, even a long-term unmarried partner does not have any enforceable rights upon the death of the other.
If an unmarried couple owns property together, they may have contract or property rights that a civil court can handle. However, it is important to note that property division for unmarried couples in Kentucky is not the same as in a divorce, where the court divides property and debts in "just proportions." Instead, unmarried couples must rely on contract and partnership laws, where ownership of property is governed primarily by whose name the property is listed under.
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Common-law marriage history in Kentucky
In the United States, common-law marriage is a concept of marriage that does not require a formal marriage license, ceremony, or a religious or legal authority to officiate. Instead, it occurs when two individuals agree to be married and present themselves as a married couple to their community.
In Kentucky, common-law marriages contracted within the state are not recognised. This means that parties who enter into a common-law marriage in Kentucky cannot use the state's courts to formally adjudicate their divorce or related issues. However, Kentucky does recognise common-law marriages that are valid in the state in which they were contracted.
The history of common-law marriage in Kentucky has evolved over time. In the Pendleton v. Pendleton case in 1976, it was established that Kentucky did not recognise common-law marriages within the state. However, in the Glidewell v. Glidewell case in 1990, the state recognised a common-law marriage that was valid in another state.
In 1998, Kentucky passed a law abolishing common-law marriage in the state, which was codified in KRS 402.005. This law stated that "no common-law marriage shall be contracted in this state on or after January 1, 1990". The Kentucky Supreme Court affirmed this position in 2019 in the case of Jones v. Mayer, clarifying that Kentucky no longer recognises any new common-law marriages after the specified date.
Despite the lack of recognition for new common-law marriages in Kentucky, the state provides some legal protections for unmarried couples, especially when children are involved. Unmarried cohabitants with children have the same rights as married couples regarding child custody, visitation, and child support. These laws focus on the best interests of the child rather than the status of the parents. Additionally, contract, business, or property laws may offer some protection during the financial fallout of a relationship ending.
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Frequently asked questions
No, common-law marriage is not recognized in Kentucky. Couples must obtain a marriage license and have a legal ceremony to be considered legally married in the state.
Kentucky does recognize common-law marriages that were valid in the state in which they were contracted. So, if you were considered common-law married in another state, you will maintain that status when you move to Kentucky.
In the case of unmarried cohabitants with children, the laws pertaining to child custody, visitation, and child support are identical to those for married couples. An unmarried cohabiting parent can petition the court for sole or joint custody, request or terminate timesharing, or award or terminate an existing child support order.
Kentucky courts have ruled that intimate unmarried relationships, even long-standing ones, do not give rise to property rights equal to those enjoyed by married persons. However, contract, business, or property laws may still offer some protection in the event of a breakup.
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