COMMON LAW MARRIAGE

Kentucky does not recognize common law marriages contracted within this state. Neither does Kentucky recognize same-gender marriages (KRS 402.045). Many legal rights issues and problems arise when people have significant others or life partners and live together without a valid marriage.

A "common law marriage" is legal in a few states and can exist there when the parties agree to be married to each other and hold themselves out within their community as husband and wife without benefit of a state-issued license. In such instances, a common law marriage which is valid in another state will generally be recognized in Kentucky.

Traditionally, unmarried couples have not enjoyed property rights that look exactly like those available to married persons. A statutory scheme called KRS 403, et seq., defines rights and duties for married couples, but there is no such system for unmarried parties. Generally, if there is no "partnership agreement", you will need a lawyer to protect your rights.

In cohabitation, unlike marriage, there are no automatic incidents of the relationship, including matters about children and property:

• One unmarried party does not have an automatic right to share in business enterprises, real property or personal property owned or in the possession of the other party.

• One unmarried party does not have the automatic right to inherit from the other's estate.

• One unmarried party does not have the right to health insurance coverage on the other's policy (though their children can be covered).

• One unmarried party is not entitled to make health care decisions on behalf of the other party if incapacitated without a valid Health Care Directive; and so forth.

The child support and custody provisions of KRS 403, et seq. do apply to children of non-married parents, regardless of the parents' marital status. The fact that the parents did not marry does not abate either party's obligation to provide adequate support for their children.

Kentucky appellate courts have repeatedly refused to create property rights solely on the basis of unmarried cohabitation, even when the parties' relationship closely resembled marriage. In Glidewell v. Glidewell, 790 S.W.2d 925 (Ky.App. 1990), the Kentucky Court of Appeals held that no property rights arose from a relationship in which the parties held themselves out as husband and wife and filed joint tax returns because none of the states in which the parties lived permitted common-law marriage.

In Murphy v. Bowen, 756 S.W.2d 149 (Ky.App. 1988), the same court upheld a trial court's summary judgment against Pearl Murphy, who claimed an interest based solely on evidence of a "meretricious relationship".

Other states are not nearly so adverse. See Lindemann v. Lindemann, 92 Wash.App. 64, 960 P.2d 966 (1998), appeal dismissed by 137 Wash.2d 1016, 978 P.2d 1099 (1999) (increased value of male cohabitant's business subject to equitable distribution because the partnership was entitled to his labor and efforts during the relationship); Koher v. Morgan, 93 Wash.App. 398, 968 P.2d 920 (1998), appeal dismissed by 137 Wash.2d 1035, 980 P.2d 1281 (1999) (partner used profit from separately owned business and his own income from the business to buy assets; court treated those assets as subject to equitable distribution, using theory that the assets had a "community property-like" character.

Even though Kentucky law does not initially appear to be encouraging, there are a number of very important and successful ways to address the ending of such relationships. A capable lawyer can pursue:

• Contract claims

• Partnership claims -- formal and/or informal

• Quantum Meruit claims

• Constructive trusts or resulting trusts

• Various real estate concepts

• Health care directives

If you believe you have a significant claim (though not married), you may need a competent Family Law attorney to advise you.

See, also, our sections on
Domestic Partnerships
and
Living Together