Keith Mack
Common-law marriage, which originated in rural England during the Middle Ages, was abolished in New Jersey in 1939. While the social mores have changed dramatically since then, couples who cohabitate without getting married are still treated differently from spouses in some crucial ways. They do not enjoy the same rights and protections under the law as legally married couples.
| Characteristics | Values |
|---|---|
| Date of abolishment of common law marriage in NJ | December 1, 1939 |
| Common law marriages before the date of abolishment | Valid |
| Common law marriages after the date of abolishment | Not valid |
| Common law marriages in other states recognized by NJ | Yes |
| Common law marriages in other countries recognized by NJ | Yes |
| NJ's recognition of common law marriages | Explicitly eliminated |
| Number of states that recognize common law marriages | 8, plus the District of Columbia |
| Number of states that never permitted common law marriages | 13 |
| Number of states that no longer permit common law marriages | 28 |
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What You'll Learn
Common law marriages in NJ are void since 1939
Common-law marriage, which originated in rural England during the Middle Ages, has been gradually abolished in Western nation states over the centuries. The United States, a former British colony, once recognized common-law marriages, but many states, including New Jersey, have since abolished them.
In 1939, New Jersey passed a law that eliminated common-law marriage. Any common-law marriage entered into before December 1, 1939, is still considered valid, but not after that date. To be considered "married" in New Jersey, a couple must obtain a valid marriage license and have a ceremony performed by an authorized individual or organization to solemnize the marriage. Without these, the marriage is invalid.
New Jersey law does provide an exception: the state recognizes common-law marriages that were validly created in another state or country. For example, if a couple has a valid common-law marriage in South Carolina, New Jersey will recognize their marriage. However, couples who live together and are not married do not have the same rights and protections under New Jersey law as legally married couples.
The abolition of common-law marriage in New Jersey has had several implications. Couples who cohabitate without legal marriage are treated differently from spouses in crucial ways. They do not have the same status regarding worker's compensation and insurance benefits, and they cannot legally make healthcare decisions or inherit by intestate succession for their partners. Additionally, they are excluded from financial benefits under the Wrongful Death Act and do not have the same rights in asset division and alimony as legally married couples.
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Common law marriages before 1939 are valid
In the United States, common-law marriage originated during the colonial period when the country was a British colony. In English common law, marriages did not require licensing or solemnization. Instead, a couple was considered married if they met four criteria: they took up residency together, held themselves out as a married couple, and otherwise behaved as a married couple.
However, in the 1900s, many U.S. states abolished common-law marriage. Today, only eight states and the District of Columbia recognize common-law marriages formed within their jurisdiction. New Jersey is not one of these states. On December 1, 1939, New Jersey passed a law that eliminated common-law marriage within the state.
Despite this, common-law marriages that occurred before December 1, 1939, are still considered valid in New Jersey. This means that, for example, your great-grandparents' common-law marriage did not become void when the law changed in 1939. However, couples who entered into a common-law marriage before this date do not have the same rights as legally married couples in New Jersey today. For instance, they may face challenges regarding worker's compensation, insurance benefits, healthcare decisions, inheritance, and financial benefits under the Wrongful Death Act.
In addition, New Jersey recognizes common-law marriages that were validly formed in other states and countries. For instance, if a couple has a valid common-law marriage in Rhode Island, New Jersey will also recognize their marriage. However, to form a valid common-law marriage in another jurisdiction, the couple must meet the requirements for that specific location before moving to New Jersey.
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NJ recognises common law marriages from other states
Common law marriages have been void in New Jersey since December 1, 1939. However, common law marriages that occurred before that date remain valid. New Jersey does not recognize common-law marriages that occurred within the state after this date.
Despite this, New Jersey does recognize common law marriages from other states. This means that if a couple has a valid common law marriage in another state, New Jersey will recognize their marriage. For example, if a couple has a valid common law marriage in South Carolina, New Jersey will recognize their marriage. This is because New Jersey recognizes all validly contracted foreign marriages.
However, it is important to note that couples in a common law marriage recognized by New Jersey may not have the same rights as a legally married couple in the state. For example, they may not have the same rights regarding health insurance, inheritance, and social security benefits.
While New Jersey does not have its own common law marriage, there are certain legal tools that long-term couples can use to obtain some of the benefits of marriage, even without marrying.
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Couples cohabiting without marriage don't have the same rights
In the United States, common-law marriages were recognized since its time as a British colony. However, common law marriages have been void in New Jersey since December 1, 1939. While couples cohabiting without marriage may consider themselves married, they do not have the same rights as a legally married couple.
Unmarried couples in New Jersey do not automatically have the same rights as married spouses. For instance, they may not be able to receive spousal support from one another or share health insurance coverage through their partner's employer-sponsored plan. When it comes to inheritance laws, unmarried partners may not be eligible for certain assets or financial benefits upon their partner's death unless they have been designated in a will or trust document. Furthermore, there is no presumption of paternity for unmarried couples, and it must be established legally.
To protect their interests, unmarried couples in New Jersey can enter into cohabitation agreements, which are binding contracts outlining financial responsibilities and property distribution during and after the relationship. These agreements can also address issues such as sharing bills and household responsibilities, retirement plans, and who will remain in the shared residence after a separation.
Additionally, prior to 2010, New Jersey courts recognized "palimony claims," awarding financial support to long-term partners after their relationship ended. However, the ability to request palimony was restricted in 2010 when the state enacted an amendment requiring such promises to be in writing and signed by both parties with independent legal advice.
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Palimony claims in NJ require written agreements
In 1939, New Jersey passed a law that eliminated common-law marriage. Any common-law marriage entered into before December 1, 1939, would still be considered valid, but not going forward. Common law marriages that occurred before that date remain valid, and New Jersey recognizes common-law marriages validly created in another state. However, couples who cohabitate without getting married do not have the same rights as a legally married couple.
New Jersey courts recognized "palimony claims" and awarded long-term partners financial support after their relationship ended before 2010. However, the ability to request palimony was restricted in January 2010 when the New Jersey Legislature enacted an amendment to its "statute of frauds" law. This law states that a promise to pay palimony is not valid unless it is in writing and signed by the person making the promise, with the independent advice of counsel. The law also says that "no claim shall be brought to court" for palimony unless the agreement is in writing.
According to Section 25:1-5(h) of the New Jersey Statutes Annotated (NJSA), palimony is a contract that must be in writing to be enforceable. The parties must have a written palimony agreement, cohabitation agreement, non-marital agreement, or other signed contract that promises to provide financial support. The parties must be represented by different attorneys who advise them about their rights regarding the agreement. The party paying alimony must sign the agreement without coercion or duress and in good faith.
The change in the palimony laws is not retroactive. Therefore, if a palimony agreement was entered into before the law changed in 2010, it could still be enforceable. Palimony agreements deal with financial support after an unwed couple separates in New Jersey. If a couple has amassed significant property, they may want to speak with their partner about how property should be divided in the event their relationship ends.
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Frequently asked questions
New Jersey abolished common-law marriage in 1939.
Common-law marriage is a type of marriage in which a couple lives together for a certain amount of time and holds themselves out as married without going through a formal legal ceremony.
No, New Jersey does not allow the formation of a common-law marriage within the state. However, New Jersey recognizes common-law marriages validly created in another state.
Couples who are not married do not have the same rights as a legally married couple. They do not have the same status as a spouse regarding worker’s compensation and insurance benefits. They cannot legally make decisions for their partner regarding healthcare and are excluded from financial benefits from the Wrongful Death Act.
To be considered married in New Jersey, a couple must obtain a valid marriage license and have a ceremony performed by an authorized person.
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