Common Law Marriage in Kentucky: Fables and Facts

Is There Common Law Marriage In Kentucky?

Common law marriage is the idea that a couple is legally married without ever obtaining a wedding license or going through some other form of ceremony to get married. As long as a few key requirements are met, a couple can hold themselves out to the public as being married and still be legally married in the eyes of the state government. It is recognized that common law marriage existed in the past and a couple was presumed to be married when they fit the legal requirements to meet the common law test. Now, many states have moved away from allowing it.
In Kentucky, this is the same idea. However, common law marriage is not recognized today. Kentucky once had provisions for recognizing common law marriages, but those provisions have been repealed. If you were married in Kentucky under the common law provisions, then the current law may not retroactively unwind it . However, it is not recognized here for a new couple where one or both parties are Kentucky residents because the law has repealed it. The last date a couple could enter into the common law in Kentucky was June 30, 1972. The common law marriage exception is still accepted in a few very rare circumstances. This will only exist if a couple makes decisions based on being married but then had that marriage unwound due to a failure to obtain a license.
The Supreme Court of Kentucky has ruled that it would be unfair to presume that this couple thought they were not married because they went through with making all of the decisions that they would have made as a married couple. When there is a mistake of law, the court may presume that the parties were married.
Kentucky law no longer recognizes common law marriage as a valid fact. Kentuckians cannot enter into a common law marriage. A couple must apply and obtain a license to become legally married.

When is a marriage legal in Kentucky?

Until 2014, Kentucky Marriage Law complied with the common law requirements. However, in 2014, the law changed and Canon 2A-6 of the Kentucky marriage requirements was repealed.
Under KRS 402.080, which now governs legal marriages, it states that there are four requirements of getting married in Kentucky. The legal requirements for marriage in Kentucky are as follows: (1) The parties must obtain a marriage license from the county clerk of the county in which they intend to reside after the marriage, or if neither party intends to reside in Kentucky after the marriage, then in any Kentucky county. The county clerk shall charge a fee of $35.50 in counties with population less than 250,000 or $47.50 in counties with a population greater than 250,000 for the license. If one of the parties to the marriage is a resident of Kentucky and the other is a nonresident or a resident of another state, the marriage license may be obtained in any Kentucky county, however, only the Kentucky resident party can register the marriage. (2) One of the parties pursuing the marriage must make application for the license at least thirty (30) days before a county clerk can issue the license. The clerk issues the marriage license upon presentation of evidence of identity, proof that the parties are of legal age (oce of the parties must be at least 18 years old) and if either of the parties has previously been married, proof of a final divorce decree or final annulment. If a judicial decree of dissolution or annulment has been entered less than 30 days prior to the application for a marriage license, the certificate of dissolution or annulment from the court must state that there was an agreement between the parties on the custody of the children and the terms for visitation and childsupport. (3) If the parties are 16 or 17 years of age, both parties must have the consent of their parents. .If one of the parties is under 18 years of age, the county court must also approve the marriage application. (4) The marriage license must be signed by the clerk of the issuing office, the two parties to be married and two additional witnesses.

What Happens If You Don’t Have Legal Common Law Marriage

The second misconception that often occurs is that people who have a common law marriage cannot receive an equitable division of property. Kentucky family law is not solely defined by the word "marriage" as a legal term. As Kentucky courts have recognized for a long time, the dissolution of marital assets and debts "is governed by the nature of ownership, regardless of how the items are titled, acquired, or if there is a marriage license." Hall v. Hall, 94 S.W.3d 301, 307 (Ky. App. 2003). As the Kentucky family court pointed out recently in Roach v. Roach, 2015-CA-000195-MR (Ky. App. 11/6/2015), "The issue is not whether he was married to Cristina, but whether he is entitled to equitable distribution of his premarital assets and the income generated from those assets during the course of the parties’ relationship."
Couples who believe they have established a common law marriage must be aware of how that belief can be legally and financially harmful. One of the most direct impacts of Kentucky’s non-recognition of common law marriages is that common law spouses will be denied the right of election or spousal election if one spouse dies. Simply stated, the right of election allows a surviving spouse to elect to take under the terms of a will or under the laws of intestacy. The right of election ensures that the surviving spouse does not end up disinherited by a disfavored child, and allows for an equitable distribution of property after the other spouse passes away. If the common law spouse disclaims the right of election and the will is later deemed invalid or the will is revoked by a subsequent divorce, the common law spouse (or his or her legal heirs) will receive nothing.

Residency and Out-of-State Marriages

Common law marriages from other states are honored in Kentucky. In other words, if two people get married in Colorado as common law spouses, and then move to Kentucky, the Kentucky courts will recognize that common law marriage for the purposes of divorce proceedings.
An example may help: An out-of-state couple could be married in Colorado, where they lived when the "deemable" elements of marriage were present. They move to Kentucky a year later , and then a year after that, decide to separate. The couple would be married for the purposes of Kentucky divorce proceedings.
Kentucky case law supports this principle. In the case of Campbell v. Davidov, the Kentucky Court of Appeals held that a common law marriage validly entered into in another state will be recognized and permissible in Kentucky for the purposes of dividing property and debts. In this case, the couple had lived in Indiana before moving to Kentucky.

Other Options Instead of Common Law Marriage in Kentucky

While Kentucky is clear in its rejection of common law marriage, many couples still seek a way to claim legal recognition of their partnership. For example, you and your partner with whom you live may want to claim as married for insurance benefits or tax purposes. The following are other ways to claim the status of being married in Kentucky: Constitutional amendments giving same sex couples the right to marry became effective on June 26, 2015.
Domestic Partnership: Some counties in Kentucky offer registered domestic partnerships. These domestic partnerships provide some, but not all, of the legal benefits of marriage. If you move to a county where these are offered, you and your partner can register as domestic partners if you meet strict criteria.
Cohabitation Agreement: You and your partner can enter into a cohabitation agreement. This is a written agreement, where you agree to take on certain legal responsibilities and make certain financial commitments. Such agreements can provide a deed to real property, declarations about the payments for private mortgages and bank loans, division of debts, and even a will to divide property. Cohabitation agreements are often completed by unmarried couples before they get married or in lieu of getting married in the first place. Cohabitation agreements must be in writing and signed by both of you.
Remember that these are just some alternatives you may have to a common law marriage.

Common Legal Advice To Kentucky Couples

If you are in a cohabiting relationship in Kentucky and have questions about your marital status or rights, it is important that you seek the advice of an experienced family law attorney. While cohabitation may not have the same legal protections as a traditional marriage, many specific issues can arise for unmarried couples, such as property distribution and child custody. Therefore, having a knowledgeable legal advocate on your side can help you navigate these matters successfully.
When searching for an attorney , consider the following:
Does the attorney you’re considering have experience specifically in common law cases?
Does the attorney have a good reputation?
Is the attorney’s fee structure reasonable?
Are you comfortable with the attorney?
Legal Advice for All Unmarried Couples
Even if you are currently happily unmarried with your partner, it is a good idea to have legal documents in place to protect your individual interests and that of your partner. Some key documents you should discuss with your attorney include: