Common Law Marriage Versus Regular Marriage
The majority of states have laws establishing that marriages are only recognized when created with a marriage license and an official marriage ceremony. This is very important because many rights are dependant on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property and only a husband in a valid marriage will inherit from his wife if she dies without a Last Will and Testament.
Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. This is referred to as a “common law marriage.” The parties will only have marital rights if their common law marriage is valid in one of the few states that still recognize common law marriage. Those states include Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if created before 1/1/97), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if created before 1968).
New York’s Recognition of Out-of-State Common Law Marriages
Even where a couple lives in a state like New York that has abolished common law marriage, if the marriage is valid in a state that does recognizes common law marriage, then New York would recognize the marriage as well,1 pursuant to the “full faith and credit” clause of the Constitution.
For instance, if a common law married couple lived in New York, and merely vacationed briefly in a state like Pennsylvania that does recognize common law marriage, New York State courts may very well recognize that marriage as valid.2 This is because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”3
Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.”4 Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.5
Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage.
Common Law Marriage Under Pennsylvania Law
“A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.”6 “Present tense” means that there must be evidence that the couple made a verbal commitment to enter a marriage at the time of that verbal statement. This means that making statements affirming or acknowledging a pre-existing marriage status or verbally expressing the intent to get married in the future do not qualify.
Where one or both of the parties are unable to testify that words were spoken in the present tense to create a marriage status, Pennsylvania law will create a rebuttable presumption that a common law marriage exists when the party alleging the existence of the common law marriage offers “sufficient proof” that the couple was in (1) Constant Cohabitation and a (2) reputation of marriage “which is not partial or divided but is broad and general”
Interestingly, in September of 2003, the Commonwealth Court of Pennsylvania in its PNC Bank decision purported to abolish all common law marriage going forward, after the date of that case. However, other Pennsylvania courts may not be bound by its decisions, and the Supreme Court of Pennsylvania declined to abolish common law marriage, deferring that decision to the legislature.
But even assuming that the PNC Bank decision were binding, many common law marriages will still survive. If the facts that gave rise to the common law marriage took place before September 13, 2003, when PNC Bank was decided, the marriage would still be valid. This means that if the couple made their private statements creating the marriage, cohabited in Pennsylvania, and had the general reputation of being married prior to Sept. 13, 2003, then their common law marriage would still be recognized under Pennsylvania law, even if PNC Bank were held to be binding precedent.
If a couple has (1) made statements to each other to effect their marriage, (2) has lived together continuously (and at least temporarily on vacation in a state like Pennsylvania that recognizes common law marriage), and (3) has held themselves out and has had the reputation generally of being husband and wife, then New York Courts may indeed recognize their marriage as valid for the purpose of equitable distribution in divorce, a spousal share in an estate, and many other purposes.
As always, these legal issues are complicated, and it is worth noting that our office has extensive experience in matrimonialand estate law. If you need legal representation in general, or if you find yourself in a situation where you may have legal rights under the theory of common law marriage in the divorce or estate contexts, please do not hesitate to contact our office.
 See, e.g., In re Steiner, 786 N.Y.S. 2d 83, 84 (N.Y. App. Div. 2nd Dept. 2004); Sears v. Sears, 700 N.Y.S. 2d 626, 627 (N.Y. App. Div. 4th Dept. 1999); Lancaster v. 46 NYL Partners, 651 N.Y.S. 2d 440, 443 (N.Y. App. Div. 2nd Dept. 1996); Tornese v. Tornese, 649 N.Y.S. 2d 177, 178 (N.Y. App. Div. 2nd Dept. 1996).
Tornese at 178.
Carpenter v. Carpenter, 617 N.Y.S. 2d 903, 904 (N.Y. App. Div. 2nd Dept. 1996); In re Landolfi, 727 N.Y.S. 2d 470, 472 (N.Y. App. Div. 2nd Dept. 2001).
 Carpenter at id.; In re Landolfi at id.
In re Landolfi at id.
Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (1998).
PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1272 (Commw. Ct. Penn. 2003).
Stackhouse v. Stackhouse, 862 A.2d 102, 104-05 (Pa. Super. Ct. 2004).
Staudenmayer at 1020 (1998).
 Id. at 108.
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