Is Common Law Marriage Valid in Kentucky?
The short answer to the question of whether Kentucky recognizes common law marriage is unequivocally, "no." Yet, the answer is a bit more complicated than that. Historically, Kentucky recognized common law marriage. Many old Kentucky divorce cases discuss common law marriage. That remains true today. For example, in 1940, the Kentucky Court of Appeals wrote the following about common law marriage: Marriage might be proved by the words of present assent, followed by cohabitation. It is of the essence of such a marriage that it be tie of a consensual nature, involving the full and free consent of the parties with an intention and a purpose of entering into a marital relation. It is just as obligatory upon a party to fulfill a promise to marry as it is to fulfill a contract. If a man and a woman, with the present purpose of being husband and wife, enter into the contractual relation of marriage by the mutual promises which they then make to each other, and this agreement is followed by cohabitation, a common-law marriage is created, although fraud in fact was perpetrated upon the relation; and this is so although the parties were cohabiting before the agreement, or although one or both of them were already married. Bethel v. Bethel, 129 S.W.2d 267 (Ky. 1940). But the modern approach has been that common law marriages entered into in Kentucky are not recognized under the law. However , marriages in other states may be recognized in Kentucky under the principle of comity. In its 2011 decision in Lawson v. Lawson, the Supreme Court of Kentucky again confirmed that common law marriage entered into in Kentucky is not recognized under Kentucky law: In recent years, that [common law marriage] rule has been disavowed, and clearly so in our Commonwealth. Indiana case law has consistently recognized our disavowal, and has therefore declined to apply a Kentucky common law marriage to events that occurred, or domestic relations cases arising, wholly in Indiana. Lawson v. Lawson, 366 S.W.3d 504, 516 (Ky. 2011). The court reaffirmed that Kentucky will continue to abide by one narrow exception: common law marriages legally contracted elsewhere. Under the principle of comity, Kentucky recognizes marriages that were validly contracted in other states and thus some common law marriages may still be valid in Kentucky: Kentucky recognizes common law marriages entered into in some jurisdictions. We decide, today, to continue to abide the principle of comity. Thus, even though Kentucky no longer recognizes common law marriages, such marriages may nonetheless remain valid if validly contracted under the law of the jurisdiction where made. Lawson, 366 S.W.3d at 515. If you have questions about your situation, we recommend that you consult with an experienced family law attorney in your area.
Alternatives to Common Law Marriage in Kentucky
While Kentucky does not recognize common law marriages, unmarried couples have other legal options available to them. These legal alternatives can help couples navigate many of the same issues that married couples do, including recognition after the death of one partner and the division of joint property.
With a civil union, same-sex and opposite-sex couples can obtain the same benefits and protections as married couples under Kentucky state law. A civil union is a legal relationship that lays out rights and responsibilities amongst domestic partners. When a civil union relationship ends, partners can split property and determine child custody arrangements.
In 2004, the legislature passed a bill to create a domestic partnership registry. The purpose of the registry is to allow local governments the ability to offer health benefits to the partners of their employees. This provision is not generally applicable to the general public.
Other forms of domestic contracts between unmarried couples are not recognized under Kentucky law. Courts are generally not interested in enforcing such contracts. However, there are some exceptions, such as when one partner can demonstrate promise of marriage based on the contract. In that case, economic damages may be recoverable as a type of breach of contract.
In some cases, unmarried couples repeat the formalities and social aspects of marriage without the legal implications. For example, couples who call themselves partners or spouses may have a similar sense of identity as married couples do. In these situations, unmarried cohabitants may even be able to make some informal property arrangements amongst themselves. However, unlike a formal will and testament, there is no guarantee that such an arrangement will be legally recognized.
Cohabitating couples may be able to enter into informal contracts with each other which would be enforceable by the courts. Unlike a formal marital agreement, concerns about unfair decisions made in the context of an escalating divorce litigation do not apply. Unmarried couples should note that contracts must meet specific requirements in order to be enforceable in Kentucky. Consult an attorney for advice on your individual situation.
Courts are not required to apply equitable property principles to unmarried cohabitating couples in the same way that they do to divorcing married couples. Therefore, property acquired by each spouse during the marriage becomes jointly owned property subject to equitable distribution among the parties. Although the concept is not formally recognized in Kentucky, unmarried cohabitating couples may want to consider entering into a modification of equitable distribution benefits agreement. This agreement can lay out what will occur to the property in the case of separation or death.
There is little legal recognition for unmarried cohabitating couples in Kentucky. For this reason, unmarried cohabitating couples may benefit from a voluntary cohabitation agreement. Such an agreement could enable cohabitating couples to lay out in writing how they plan to handle issues such as:
To ensure that you have solid protections in place in the event of separation or death, consult an experienced divorce attorney for guidance.
Consequences of Non-Recognition in Kentucky
The most significant legal concern couples face if they enter into a common law marriage in Kentucky is the significant limitation of rights that accompany the fact that Kentucky does not recognize common law marriages.
For example, same-sex couples or other unmarried couples in Kentucky have no rights to each other’s pensions, retirement, or social security benefits upon death. Upon the death of the first partner, without a Will establishing inheritance rights to the surviving partner or steps to have the marriage declared valid, the surviving partner has no right to any marital property. Keep in mind that those provisions in the Kentucky statutes that provide for inheritance by a surviving spouse apply only to those spouses who are legally married and not to partners in a common law marriage. Because Kentucky statute is silent as to inheritance rights of those in a common law marriage, it seems that such a marriage does not compel specified inheritance directly from the decedent’s estate but rather a claim against the estate just as an unmarried partner would have. Each scenario would be considered separately. For example, in a common law marriage lawsuit, the surviving partner would need to show for how long the parties resided together, and the more property acquired, the more likely the surviving partner would be entitled to at least half of the jointly acquired property (subject to other proofs and arguments). And, of course, that same proof would be necessary to prove damages in any wrongful death action for the common law wife or husband. Likewise, the question of children will be complicated. Note that Supreme Court Rule 31 requires mediators to advise all co-habitating couples facing child custody issues of the lack of parental rights in Kentucky, including same-sex couples. Some courts may assume that any foster parent who shares a home with a child has standing to bring an action for visitation or custody. However, there is some case law that says that to establish standing under KRS 625.100 or 199.499, which were interpreted to mean "parent," a person must also have legal recognition of father and child relationship. At least one decision from the Kentucky Court of Appeals holds that a person without legal recognition cannot bring an action under KRS 199.011(3) for visitation. This is a statutory provision concerning visitation of children in the home of a disabled grandparent who has partial or permanent custody of the children. If a court were to find that a common law wife or husband does not have standing under another statute, such as KRS 199.561 (child custody), that portion of the statute would permit a grandparent to intervene in any action involving custody of his or her grandchild.
The bottom line is that the lack of recognition of any common law marriage in Kentucky would create a significant obstacle to property and related issues that would also be present in spousal relationship.
Recognition of Out-of-State Common Law Marriages
As mentioned above, Kentucky no longer recognizes the formation of common law marriages in the state, but English Common Law marriages are sometimes recognized for the purpose of establishing an obligation to pay alimony. This rule does not, however, apply where both parties are citizens of Kentucky, married in Kentucky, and their marital status was validated by a Kentucky Court. The issue arises when a couple leaves Kentucky and lives in a foreign jurisdiction that recognizes common law marriages. If that couple forms a common law relationship in that jurisdiction, is that common law relationship recognized when they relocate to Kentucky? The answer is "yes." . Case law specifically provides: "Under the full faith and credit clause, if a marriage is valid where it takes place, it will be valid everywhere else. This principle is well established… We have held that the duty to give full faith and credit to a specific marriage determination applies regardless of the form of the marriage…". Fout v. Fout (2014) 439 SW3d 373 (Ky.Com.App. 2014).
The case found that a court must give full faith and credit to the common law determination of another state, even where that state considers the relationship to be equivalent to marriage, such as in Vermont and Georgia. Ultimately this means that the court is compelled to recognize the common law marriage as valid if the parties reside in Kentucky.
Advice for Couples in Kentucky
For those living in Kentucky and considering their options for legal status, it is advisable to seek the advice of a local family law attorney to understand how those various choices may affect their circumstances. Likewise, sound estate planning advice may be appropriate . And while there are some types of domestic contracts (which may include cohabitation agreements) that may afford some limited protection to unmarried persons, that may not be the best or only option in any particular case.