Is a Common Law Marriage valid in the State of New York?
Historically, New York did recognize common law marriage until it was declared against public policy in 1933 and thereafter disallowing the creation of a common law marriage in New York. However, New York has provided limited legal recognition of common law marriage in its repeal of prior laws recognizing common law marriage when an individual moves to New York from another jurisdiction that does recognize common law marriage.
Statutory Rationale N.Y. Dom. Rel. Law § 11 (1) provides in pertinent part: No marriage is valid, unless the parties thereto shall respectively provide the evidence of their respective ages, and identity, and such evidence shall be required for every marriage solemnized in the state, except a marriage which was valid without such proof .
Due to the public policy of New York in disfavoring common law marriages, prior legislative acts accepting a common law marriage as valid under New York law where it was entered into a jurisdiction recognizing common law marriages in effect creates a nonrecognition of a prior common law marriage entered into in a jurisdiction other than New York.
State of the Law In order to obtain legal recognition of a common law marriage prior to its repeal in New York State in 1933, both parties must have been both competent to marry and with the intent of establishing a common law marriage. (See Scharf v. Scharf, (1958) 19 Misc.2d 542). In addition, there must have been consummation of the marriage by cohabitation and public as husband and wife. (See Matter of Michael, 12 Misc.2d 546 (1957); O’Neill v. O’Neill, 76 N.Y.S.2d 781, 782 (Sup. Ct. 1947)).

Common Law Marriage Requirements
To establish a common law marriage in a state that recognizes such unions, the following general requirements must be satisfied: A Marriage License. Because common law marriages are created as a result of the couple’s conduct, there is no need to apply for a marriage license. However, for purposes of the community property laws that exist in some states (and for federal taxation purposes, if applicable), a public record of the date of the marriage may be important. Consent. The couple must intend or agree to marry and act according to this agreement. In some states, the parties also must live together in a manner similar to that of a married couple and/or engage in sexual relations. Cohabitation. The couple must cohabit. Most courts have required this in order to validate a common law marriage. It is sufficient to show that the parties lived together regularly, even if they only sometimes held themselves out as married. Public Representation. Generally, the couple must hold themselves out as being married. While the state courts that recognize common law marriages do not have an express holding on what counts as holding out, it has generally been held that the couple must represent themselves to the public as being married, using the same last name, referring to each other as husband and wife, wearing wedding rings, using joint accounts, and so forth. While the above are general requirements that are observed universally, states differ in their approach to recognizing common law marriages. Specifically, New York does not recognize common law marriage. New York law requires couples to obtain a marriage license before marrying.
How to Consider Legal Alternatives to Common Law Marriage
New York law does not recognize common law marriage; that is, a relationship in which two people live together and present themselves publicly as a married couple. However, the State of New York does recognize domestic partnerships and civil unions. Domestic partnerships are partnerships you enter into at the Municipal level and which usually apply only within the municipality in which you entered the partnership. On the other hand, a civil union is a legal status that extends some rights of marriage to persons of the same sex. Civil unions, for the most part, confer all the legal rights and benefits of marriage. Finally, there is also cohabitation (living together), which carries no legal protections or benefits.
Domestic partnerships: Pursuant to New York City’s domestic partnership law, if you and your partner live together as a couple and share a domestic life together, you may enter into a domestic partnership. To become domestic partners, you must file and execute a domestic partnership agreement and you must file a domestic partnership registration form with the City Clerk. A domestic partnership must meet certain criteria. You must have shared a domestic life together. You must share income or expenses. Neither you nor your partner can be married to anyone else; that is, you cannot have multiple spouses. There are other criteria. Domestic partners cannot be closely related and you cannot be under the legal age of consent.
Civil unions: New York does not currently recognize same-sex "marriage," but it does extend similar "marriage-like" benefits to same-sex couples through civil unions. In order to become involved in a civil union, you must intend to create a family with your partner and cohabit together as a couple. Just as with marriage, you must plan to live together and support each other. It must be a serious relationship. After entering a civil union, you are subjected to the same rights and duties as those who are legally married.
Cohabitation: Cohabitation refers to simply living together as a couple. Although it is not supported by legal status, definitions or protections, some couples benefit from the "interdependent relationship" they may have nurtured over time. Cohabiting couples may also enter into cohabitation agreements, which stipulate how property and assets will be distributed if you decide to separate.
When New York Does Not Recognize a Common Law Marriage
For couples in New York who believe their relationship was recognized as a common law marriage, the ramifications can be significant. Simply put, the New York court system does not afford these couples the same rights as traditional married couples, as evidenced by the following examples:
Property Rights
If a couple believed they were in a common law marriage and operated business together, they may find themselves unwittingly disadvantaged when it comes to asset distribution. For example, if a couple was not legally married but had two businesses under the names of both spouses (e.g., Attorney A & Associates, LLC and Attorney B & Associates, LLC), the assets of each spouse would be considered separate.
Parental Rights
In many cases, couples who are in a common law marriage will have children while maintaining their non-legal marital status . If they later separate or divorce, one spouse or the other may make a claim for full custody (and attempt to keep the children from their former partner). However, because there is no legal marriage, it is much more difficult to prove that the parent providing the child with regular care and stability does not have the "financial credibility" to offer the same to their child at all times (especially if there were a few years of simplex poverty for the new couple or the parent moved out for a while).
Estate Planning
Another important consideration is estate planning; specifically, the ability of one partner to inherit from the other’s estate. Inheritance laws in New York state that only legally related family members are afforded certain rights. While a person may choose to leave property to a partner via will, such a bequest must state as explicitly as possible the couple’s presumed or assumed marital status.
Foreign States’ Common Law Marriages Being Recognized
Recognition of Common Law Marriage Formed In Another Jurisdiction
While it is true that common law marriages entered into in New York will no longer be recognized in New York, what about common law marriages which were entered into in another state where they are legal? Under the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution, each state must recognize the validity of judicial proceedings, including marriage, entered into in another state. So, the simple answer to that question is, yes, New York must recognize the validity of a common law marriage entered into in a jurisdiction where common law marriage is legal. Courts, government agencies and businesses will have no choice but to give full faith and credit to a common law marriage legally entered into elsewhere.
Recent Changes in the Law and Examples
Recent legal developments indicate that New York courts are moving away from the vestiges of recognition for common law couples. A salient recent decision from the New York Court of Appeals involving facts almost identical to this author’s recent decision in Lewis v. Fajardo, found that same sex couples could not invoke the public policy exception to the requirement of a marriage certificate.
In 2017, the New York Court of Appeals decided the case of Munnelly v. Munnelly, a case with facts virtually identical to those presented in Lewis v. Fajardo. The case involved the Estate of Deirdre Munnelly, deceased. Id at 1. The decedent and the decedent’s sister commenced an interpleader proceeding which arose from a dispute as to who was entitled to collect a $50,000 life insurance policy (the "Policy") owned by the decedent at the time of her death. Id at 2. Initially, the decedent’s brother, Kevin Munnelly, was the named beneficiary of the policy, but Kevin signed a change-of-beneficiary form changing the beneficiary to his sister, Caroline Munnelly ("Caroline"), a few days after decedent’s death. Caroline claimed she was entitled to the proceeds of the Policy following decedent’s death while Kevin claimed he was still entitled to the proceeds, alleging that the change-of-beneficiary form was invalid because had been signed and/or notarized after the decedent’s death, thus rendering it a nullity. Kevin also submitted a copy of a will allegedly executed by the decedent on March 12, 2015, and a certificate of readiness. The will named Kevin as the sole beneficiary of the decedent’s estate in the event Caroline predeceased her IT at 2 . Kevin moved to be appointed administrator with will annexed upon decree of probate. The court in Lewis v. Fajardo denied unlicensed parties the right to represent same sex couples and as a result a special appearance was made. On October 3, 2019, the Court in Lewis v Fajardo, denied the application and denied regularization of the appeal and denied leave to appeal to the Appellate Division. 2019 N.Y. Slip Op. 28695 (2019). The absence of an appeal on this decision shows overwhelming authority for the Lewis v. Fajardo decision. However, what other cases exist to show authority in these actions and demonstrate precedent to the Lewis v. Fajardo decision? In the case of Munnelly v. Munnelly, the New York Court of Appeals found that no exception exists for same-sex couples to the rule requiring written, documented proof of marriage for same-sex couples. Id at 2. Accordingly, the Court held the change-of-beneficiary form signed by Kevin Munnelly is sufficient proof that Caroline was the beneficiary of the insurance policy under Michael I. Munnelly’s will in 2017. The Court also held that if an apparent contradiction arises on the Probate Statute, the more specific section controls. Id at 8. Here, the Court similarly held that because her sister was the named beneficiary, she was entitled to the money. Id at 4. All of these decisions demonstrate that a trend for same sex unions is being made into an "indisputable" inference that same-sex spouses to married couples are to be handled the same way as heterosexual couples are to be treated with regard to the laws of marriage in New York.