The Definition of Common Law Marriage
Common law marriage can be defined generally as a union in which those involved are legally considered husband and wife, even in the absence of a marriage license or ceremony. It is a marriage in which holds the same legal implications as a traditional marriage, without a formal marriage certificate. A common law marriage typically requires couples to live together for a period of time and intend to be married , hence the term "common" or "traditional" relationship.
In two common law states, holding herself out as nobody’s girlfriend is not the way to establish the intent to marry.
Kentucky is one of six states that will recognize a common law marriage. These states are Colorado, Iowa, Kansas, Montana, Texas and Utah. Each of these states have different rules for accruing the "intent" to be married.
The Legal Standing of Common Law Marriage in Kentucky
The recognition of common law marriages in Kentucky is a rather complex issue as it is a legal marriage that does not follow the traditional steps associated with a legally recognized union. All parties must agree to be common law spouses, must live together, and do so for a set period of time. A common law marriage is formed by an agreement of a man and woman to be husband and wife, and not by a ceremonial marriage.
In Kentucky, common law marriages are not recognized. A 1977 ruling in Lexington Furniture Company v. Ward stated that there are no longer common law marriages in Kentucky. Nothing in Kentucky law has overruled or changed that decision. Therefore, cohabitating couples must formally marry if you wish to be legally recognized as spouses.
The Recognition of Common Law Marriage from Other States
Kentucky recognizes common law marriages from other states where such unions are legally permitted. Over the years the Kentucky Supreme Court has held that Kentucky will recognize the validity of foreign common law marriages if such common law marriages were valid in the jurisdiction where they were created. This rule is premised on Section 28 of the Kentucky Constitution, which holds that "the laws of the state . . . shall not be construed to extend to or affect any suit now pending in any of the courts of the state, nor to affect any right already vested."
Kentucky will also recognize a common law marriage performed within Kentucky during the time period when the law recognized common law marriage. See CKF Properties, LLC v. First Commonwealth Bank of Ky., 270 S.W.3d 85 (Ky. App. 2008) (holding that the run-off effect of the law permitting common law marriage is controlling). Even though the common law provision has been rescinded by the General Assembly, previously established common law marriages remain valid in Kentucky.
Other Legal Alternatives to Common Law Marriage
In Kentucky, cohabiting couples can consider formalizing their relationships without tying the knot. This allows both parties to establish legal protection in the absence of marriage, ensuring that their rights are safeguarded. Without a legal arrangement, cohabiting couples do not have any automatic rights, privileges or benefits down the line. A domestic partnership is a legal arrangement that provides recognition to couples—married or unmarried—who choose to live together as a family. By signing a domestic partnership agreement, unmarried partners gain a number of the family law rights that apply to married couples in Kentucky. A domestic partnership agreement generally contains the same information as a will, such as: Parties also need to sign a cohabitation agreement that spells out the sharing of assets and debts in the event of a break-up. A cohabitation agreement contains many of the same clauses as a prenuptial agreement, but still requires the courts’ approval in the event one party files for divorce or separation . Some states implement Domestic Partners Acts, which provide rights corresponding to those offered to married couples. Under the provisions of the Domestic Partners Act a domestic partnership agreement will be recognized if: Although not highly common, paternity agreements are something to consider for unwed parents who plan to live together as a family, but wish to remain unmarried for the present time. These agreements are very detailed, spelling out child support, residential arrangements, visitation, medical insurance and decision-making when it comes to the children. Just like a skilled family law attorney will provide counsel to married couples who are getting a divorce, that same attorney can assist cohabitating couples who decide to split. An experienced attorney will review your domestic partnership agreement or cohabitation contract, and help you understand your rights and obligations under Kentucky law.
Property and Custody Issues Surrounding Common Law Marriage
The recognition of common law marriage in Kentucky can have significant implications in relation to the division of property and debts, inheritance, and child custody arrangements.
In Kentucky, ownership of property for individuals in a common law relationship is determined based on the nature and manner of acquisition of an asset, but the classification of assets as marital or non-marital can lead to disputes in the division of assets. In this regard, generally speaking, the restrictions of Hidden Hill Country Club v. Roberts are not applicable to division of property under common law marriage, which is essentially subject to the same analysis as legal marriage for the division of marital assets and debts. However, the exact division of property and debts will depend on the particular facts of each case.
The recognition of common law marriage can also implicate inheritance rights and in determining a child’s status (i.e., whether the child is considered a "legitimate child" for purposes of receiving an inheritance). As previously discussed, a child born to parents who are cohabitating is a legitimate child for purposes of inheritance due to the recognition of common law marriage in Kentucky. However, the child must still have been born in a common law marriage or the legality of the child’s birth must be proven.
Additionally, common law marriage can have an impact in the context of child custody determinations. In the realm of child custody, unmarried parents have equal rights to their child. Therefore, the legal status of the parents’ relationship does not impact the determination of custody of the child. Such determination will be made based on the best interest of the child standard, regardless of the parents’ marital status.
Those in a common law marriage in Kentucky should keep in mind the potential impact of such status on property division, inheritance rights, and child custody determinations.
Making Sure Your Relationship is Legally Recognized
A couple may take steps to ensure that they are recognized as legally married under common law. Even if the parties in Kentucky have fulfilled the conditions of a common law marriage, it is always better practice for a couple to obtain and file for one of the standard licenses.
When a couple marries through a common law marriage, they may want to consider formally creating a marriage certificate as evidence that they were in fact married. A marriage certificate will generally describe the where and when of the marriage, when the parties began living as husband and wife, and when the marriage ended in divorce or dissolution. If a couple does not obtain a marriage license as stated above, their marriage may be open to challenge by another interested party who believes the marriage never existed. Additionally, for the couple to enjoy the full benefits of the law, including tax and estate planning benefits, they need to show proof of their marriage. A marriage license will act as proof of their common law marriage.
In Kentucky, as in most other states , a couple may obtain a marriage license by filing a joint application with the county clerk. Because the application requires both parties to be present at the same time to file the joint application, there are no publishing requirements for a couple in Kentucky to marry through common law. A couple seeking to legally formalize their common law marriage should take all precautions to obtain a marriage license while their relationship is intact, as any divorce proceedings in Kentucky will likely be protracted and more costly. For example, if a couple is engaged in a dispute at how to divide their property, the court may require the couple to obtain a legal marriage license before deciding their property rights. And as a result of their failing relationship, the couple may be unable to cooperate with each other to have the marriage formally recognized.
Unlike traditional marriages, a common law marriage requires no formalities for its formation. However, a couple who has engaged in a common law marriage and wishes to benefit from the law is encouraged to obtain a marriage license to provide evidence of their marriage in the event of a local dispute.