Two individuals living together in a relationship which is marriage-like but not married might ask themselves: Do we enjoy equal rights as married couples? The issue is particularly relevant in the state of New Jersey since contrary to what many people may think, the state does not allow common-law marriage as many would have imagined. It is important to understand what rights (or none whatsoever) the so-called common-law spouse has in the state of New Jersey so that couples may plan their future, secure the assets, and learn how to behave should the relationship come to an end.
Here, we examine the legal environment in the state of New Jersey, defining what common-law marriage is as well as what the law says and what unmarried cohabitants can and cannot count on.
Conventionally, a common-law marriage is a union where a couple resides together, present themselves’ as married before society and consider themselves married but they do not undergo a legal ceremony or get a marriage license.
No. Under N.J.S.A. 37:1-10, the common-law marriage was abolished in New Jersey on December 1, 1939. The marriages that are established after the date in the state of New Jersey by the common law are not considered.
The facility however, has a very significant exception: a common-law marriage lawfully concluded in a different state will be acknowledged in New Jersey, under the Full Faith and Credit Clause of the U.S. Constitution, so long as the criteria of the state where the marriage was concluded were satisfied.Since New Jersey does not recognize common-law marriage within the state (since 1939), marital status should not be mistaken for cohabiting couples in a cohabiting relationship. Key limitations include:
The system of divorce and spousal support (alimony) that is applied in the case of married couples is not used in the case of unmarried cohabitants.
In New Jersey, married couples have an opportunity to share property according to equitable distribution. However, these laws of division of property are not automatically applicable to the case of unmarried partners. In lieu of this, in case of a disagreement of jointly owned assets, the court can settle the case according to the rules of equity (fairness) and not according to the law of divorce.
The surviving unmarried partner is not an automatic beneficiary under the intestacy statutes in New Jersey in case one of the spouses dies without a will.
Legal marriage also comes with many benefits like health insurance, pension survivor benefits, Social Security benefits, spousal or survivor benefits among others that are not provided to cohabiting and non-married partners.
Although in the state of New Jersey common-law marriage is not acknowledged, still there are some legal remedies and solutions which unmarried couples may apply in order to save themselves. These include:
Palimony is the alimony of one partner to another following a non-marital relationship.
Requirements in New Jersey:According to the New Jersey law, the palimony agreements should be in writing, and should be signed by both parties.
Independent Legal Advice:To be enforceable, the court will consider more favorably that both partners are under separate legal advice at the time of signing the agreement.
No Retroactive Guarantees:The law has been changed in 2010, which makes the enforcement of the oral or implied agreements more difficult; only the written properly signed agreements are nowadays reliably enforceable.
They are agreements between cohabitants which set out rights and duties e.g. who owns what, how to share assets, contributions to costs, and termination of the relationship.
Why they help:Having a cohabitation agreement, which is written well, would allow the unmarried people to clarify the things that they could not clarify without the agreement like property ownership, contribution, and how to break up.
Practically, courts can listen to the claims made on the ground of equitable principles (fairness), e.g., in case one of the partners made a valuable contribution (financially or otherwise) to the property owned by both partners jointly.
These are not fixed results because fair decisions are factual and strongly depend on the facts of every case (e.g., contributions, written or implied agreements, termination of the relationship).
Wills: In case the partners wish to secure an inheritance, the most secure and surest way to do it is to sign wills that make each other the beneficiaries.
Joint ownership: Title property jointly where appropriate - joint tenancy with right of survivorship is one way of making sure that property is automatically transferred on death and probate is avoided.
Power of Attorney and Advance Directives: this can be completed by setting up financial power of attorney or healthcare proxies which will allow making decisions in the event that the other partner is incapacitated.
Child Support: Unmarried parents in New Jersey are subject to equal obligations and rights concerning child support as are married parents, child support provisions are not limited by marital status.
Custody & Visitation: Courts’ will take into consideration the best interests of the kid. Custody, the time parents spend with the children and financial support are legal matters that do not mandate marital status between parents.
Reality: You are not legally married in New Jersey, however much time you have lived together or however much of a marriage you have created the impression that you are, unless you underwent a legal marriage procedure (unless the marriage was solemnized elsewhere).
Reality:A partner who survives unmarried may leave no bequest to the other in case of his death. This must be planned through estate documents.
Facts: The law in New Jersey now provides that palimony agreements must be in writing and oral promises are extremely dangerous.
One of the partners might even be left unguarded without formal recognition. An example is that, when any of the partners made a sacrifice in terms of career in order to take care of the home, he or she may not have a legal right to claim for compensation in the future provided there was no prior written agreement.
The concept of “common-law spouse” is more of myth than reality in the state of New Jersey. The state has been prohibiting common-law marriages since 1939. In the case of cohabiting couples, who are not legally married, most of the advantages and safeguards that lawfully wedded couples enjoy including alimony, intestate succession, and the division up of property by the statutory rules are just not available.
