Background to Common Law Marriage
Historically, common law marriage was a method of creating a marriage without a ceremony or other special formality. Although couples may live together as husband and wife without actually getting married, if their relationship has the same effect of creating a legal marriage – all parties whether or not it was the parties’ purpose – the relationship is a common law marriage. Common law marriage is a judicially created exception to the basic rule that to create a marital status, there must be a license and a ceremony. This rule also holds true in Nebraska.
The basic elements of a common law marriage require sufficient proof that the parties:
Nebraska requires that this proof show that the parties intended to enter into a marriage relationship and to make that relationship permanent in nature. Intent is shown by the parties’ words and acts.
Not only must the parties agree to be married, but they must also clearly and unequivocally follow through on that intent . Where cohabitation exists in Nebraska, it is presumed that the parties have agreed to be married, but this presumption may be rebutted. The presumption surrounding intent to marry is created only by cohabitation. While cohabitation is a required element of a common law marriage in Nebraska, it is also an element that must be shown to create the presumption of intent to marry. In other words, while there must be proof of cohabitation to prove a common law marriage, the mere existence of cohabitation is not enough to show that a common law marriage exists.
Common law marriages are treated like ceremonial marriages in Nebraska. An individual claiming a common law marriage bears the burden of proving that all of the above elements are met. If there is any reasonable doubt, the court will presume that there is no common law marriage. Because common law marriages are so difficult to prove, the majority of Nebraska cases addressing this issue are appellate decisions.
Nebraska and Common Law Marriage
In order for a marriage to be considered valid, it is required that a legal marriage license be issued by the state. Nebraska law is very clear about this requirement: "No person shall contract or purport to contract marriage unless the person is first issued a marriage license…"
The certificate of marriage is important because it is an official record of the union. But beyond simply being required, Nebraska doesn’t recognize the legitimacy of any common law marriages. A 1917 statute specifically states: "A marriage contracted without a license, in accordance with the laws of this state shall be deemed to have been contracted without authority, and therefore be void."
Interestingly, the same statute also states: "…in case of cohabitation under the belief that the parties have been lawfully married, such marriage, if it had been lawful at the time of its actual celebration, shall be validated and confirmed upon such cohabitation in this state for a period of three years." This means that, even if a couple considers themselves married under common law, if they have lived together for three years, Nebraska will recognize their marriage as if it had been legally licensed.
States That Recognize Common Law Marriage
A common law marriage entered into in another state will be valid in Nebraska if it was validly created in the state where it was created. Nebraska does not enforce its common law marriage laws in other jurisdictions. Thus, a person could satisfy the common law marriage requirements of some state – for example by cohabitating for 70 years – but Nebraska would not recognize that in any way as fulfilling Nebraska’s common law requirements.
So, when considering whether a common law marriage was established, Nebraska also looks to the law of the state where the alleged common law marriage was established in addition to Nebraska’s laws. Nebraska does not recognize all common law marriages, such as those prior to April 1, 1987. However, a couple who entered into a common law marriage prior to that date in another state may have that marriage recognized in Nebraska if it met the requirements of that state for a common law marriage.
Legal Ways Other than Going Common Law
While a common law marriage provides many of the same legal benefits and rights as a traditional marriage, it is becoming less and less common for modern couples. In Nebraska, an unmarried couple can explore other avenues to establish financial security and legal safety. Similar to married couples, it is essential that unmarried people understand their rights under the law. Few people are aware that domestic partnerships, cohabitation agreements and legal arrangements help to offer security and protection. For same-sex couples, The Nebraska Domestic Partners Act (LB 133) allows gay and lesbian residents of Nebraska to register as domestic partners under Nebraska law. Under this act, domestic partners can file a statement of domestic partnership with the Nebraska Secretary of State in order to obtain specific legal protections under the law. Because LB 133 applies only to same-sex couples, any cohabitating heterosexuals will not be able to file as domestic partners under Nebraska law. Common-law marriage is not legal in every state and therefore cannot be created solely by an agreement to live together. Couples cannot just sign a contract stating they will be domestic partners. Before registering as domestic partners, couples should keep in mind that the law does not provide domestic partners with the same rights and obligations as married couples. The law also states that domestic partners cannot claim medical insurance , health-related benefits, or tax benefits. However, domestic partners can be included in funeral arrangements, granting final disposition, and in managing healthcare decisions. An alternative for unmarried couples is a cohabitation agreement. Like a regular marital agreement, a cohabitation agreement is a contract between two individuals who have chosen to live together as a couple. Such an agreement is an ideal way for both partners to protect their rights to property, money, objectives, and liabilities through legal terms. In order for these agreements to be binding, they must include specific legal terms. Any information that is not true should be discarded prior to signing. Without accurate information, an agreement may be deemed null and void. When drawing up an agreement, it is important to note that the contract must be in writing, signed by both parties, and fair and reasonable upon execution. Otherwise, the court may not enforce the contract. The following elements are often included in a cohabitation agreement: A cohabitation agreement can be beneficial for financially dependent partners, such as a homemaker or stay-at-home parent. Such agreements can also be useful for unmarried couples who share children, property, or other joint assets. A well-crafted cohabitation agreement can ensure that both partners have equal rights to all assets involved.
Frequently Asked Questions about Nebraska’s Common Law Marriage Law
Q: What rights are afforded to those who are "common law" married in Nebraska?
A: Generally, a common law marriage in Nebraska has the same effect as a "formal" marriage. That is, a common law marriage entered into in Nebraska, or a common law marriage where one or both of the parties reside in Nebraska, is treated as any other marriage. Parties to a common law marriage are entitled to the same benefits and protections afforded to any other marriage such as health insurance benefits, tax benefits, spousal benefits, division of retirement benefits and interests, social security benefits, etc.
Q: I thought common law marriage was done away with in Nebraska. So why can I not find anywhere in the statutes that it was done away with?
A: Common law marriage is not addressed in the Nebraska Revised Statutes. The reason is because the Nebraska Supreme Court and earlier Nebraska courts have held that the existence of common law marriage is a common law concept and not a statutory creation. In other words, the idea of common law marriage preceded and developed outside of what are commonly called the "blue books" or "black letter" laws.
Q: I am in a "common law" marriage with my significant other but have been told that my significant other is not entitled to anything if I die and don’t leave a will if we are only considered "common law" married. Is that true?
A: No. While a common law marriage in Nebraska is not a statutory concept, it is a judicially created idea that is legally recognized in Nebraska when proved by clear and convincing evidence that the parties had a present intent to be married. Thus, the legal effects of a common law marriage in Nebraska are the same as a formal marriage in Nebraska.
Q: I am gay, does this mean that I am not entitled to be married?
A: No. Since the legalization of gay marriage in Nebraska, a common law marriage in Nebraska provides all the same rights, privileges and duties of a "formal" marriage. However, a common law marriage is not easily recognized, so parties may be wise to memorialize the existence of their marriage in some type of writing, even if only for their own benefit.
Options for Unmarried Couples in Nebraska
Recognizing that the law surrounding common law marriage can be complex and nuanced, it is essential for unmarried couples in Nebraska to seek legal advice tailored to their specific circumstances. Consulting with experienced family law attorneys ensures that couples understand their legal rights and obligations and can make informed decisions about how to proceed.
When cohabitating as unmarried partners, it is crucial to have open discussions about your intentions for the future of your relationship. If you and your partner wish to create a level of formality similar to a legal marriage, consider drafting a cohabitation agreement or legal contract that outlines your expectations, financial responsibilities, property rights , and other essential facets of your relationship. Such an agreement can help establish your intentions not to enter a common law marriage and can serve as a reference point in the event of a dispute.
Ensuring that you have all the necessary legal documents in place is also vital. For example, if you have decided to share financial responsibilities with your partner in lieu of legal marriage, you may want to obtain a joint ownership deed for your home or other shared assets. Additionally, creating wills, powers of attorney, and healthcare proxies can offer assurances that your preferences are honored in the event of death or incapacitation.
Unmarried couples must remain proactive in protecting their interests and separating their assets to avoid any potential claim that their relationship has created a common law marriage or that they intend to create a common law marriage through their actions.
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