Arons & Solomon | September 15, 2021 | Family Law
New Jersey does not recognize common law marriages that occurred within the state after December 1, 1939. Cohabitation, holding yourselves out as married, or even a marriage ceremony will not replace the steps of a legal marriage.
Relying on a common law marriage could deprive the common law spouses of the rights and responsibilities that arise from a legally recognized marriage, from receiving spousal benefits after death to dividing property in a divorce. A couple will face substantial risks by relying on common law marriage to protect their legal interests.
Here is some information about common law marriage in New Jersey and the steps required for a legally recognized marriage.
Common Law Marriage
Under English common law, marriages did not need licensing or solemnization.
Instead, couples were legally married when they:
- Were single and over 18 years old
- Intended to be married
- Cohabited for a minimum period of time
- Held themselves out as married
If a couple met all four elements, English common law considered them to be married. The goal of common law marriage was to recognize marriages without requiring couples to travel from the countryside to a city to license and solemnize their marriage.
Common law marriages were standard in rural England during the Middle Ages. The U.S. started as a British colony. Therefore, most states recognized common law marriage.
But in the 1900s, many U.S. states abolished common law marriage. Currently, a couple can only form a common law marriage in eight states, plus the District of Columbia.
The states where you can form a common law marriage include:
- Rhode Island
- South Carolina
In every other state, including New Jersey, you must meet the requirements of the marriage statute to marry.
New Jersey Marriage Laws
To avoid confusion over New Jersey’s recognition of common law marriage, the New Jersey Statutes explicitly state that common law marriages are void after December 1, 1939.
This statute does leave an exception. If you entered into a common law marriage before December 1, 1939, New Jersey deems your common law marriage to be valid. This means that your great-grandparents’ common law marriage did not suddenly become void in 1939.
New Jersey law provides another loophole to recognizing common law marriages. New Jersey recognizes marriages validly formed in other states and countries.
This means that New Jersey will recognize a common law marriage validly formed in Rhode Island, for example. But you must form a valid common law marriage in one of the nine jurisdictions that recognize it before moving to New Jersey.
Forming a Valid Marriage in New Jersey
New Jersey makes marriage easy. You simply have to apply for a marriage license. After a 72-hour waiting period, your city issues the marriage license. A judge can waive the 72-hour waiting period in an emergency.
You deliver the marriage license to a licensed officiant within 30 days after issuance. The officiant solemnizes the marriage.
After solemnization, the couple, the officiant, and two witnesses sign a marriage certificate. The officiant files the signed marriage certificate with the office that issued the license.
Problems with Common Law Marriages in New Jersey
If you try to form a common law marriage in New Jersey, you will fail. Common law marriages are void in the state. Courts will treat you and your common law spouse as friends if you have no children or co-parents if you do. But courts will not recognize you as married.
This can create problems. Courts will not recognize you as an heir if your common law spouse dies without a will. You cannot divorce a common law spouse, although you can file a family law case to resolve child custody and child support. And if your common law spouse gets ill, courts might not grant you authority to make healthcare decisions.
Understanding these risks will help you choose between marriage and unmarried cohabitation with your significant other.