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Editorial: Don’t repeal common-law marriage; fix it instead

Society is rethinking the nature of marriage and the state’s role in relation to that ancient institution, so New Durham Rep. David Bickford’s bill to eliminate common-law marriage in New Hampshire is timely. But instead of eliminating the common-law option, the Legislature should expand on it to remedy several problems, including one cited by Bickford. The law does not recognize same-sex marriages, and it should – to protect the right of common-law spouses to inherit their partners’ estate.

New Hampshire’s common-law marriage statute, which dates to 1842, is unique in two ways. It is the only one that requires a minimum length of cohabitation to be eligible to be married under common law: three years. And it’s the sole state that recognizes common-law marriage only posthumously. A couple can only have been considered married under common law in New Hampshire after one of them is dead. That’s the other problem lawmakers should remedy, because it can unfairly deprive common-law spouses of survivor’s benefits and potentially leave them destitute.

Only nine states, plus the District of Columbia, recognize common-law marriages. Common-law marriage statutes were enacted when travel times were measured in days, weeks and months and many couples lacked access to a minister, judge or justice of the peace who could solemnize the marriage. They allowed couples to get on with their lives and provided protection, primarily for women, who otherwise could be left destitute by the death of a partner, a protection that remains valuable today.

Despite its long history, common-law marriage is often misunderstood. Merely living together as a couple for years is not enough, so people who co-habitate needn’t fear that they’ll wake up one morning and find that in the eyes of the law they are married. The handbook the U.S. Department of Labor employs to decide who qualifies uses a five-part test, and courts follow a similar rule. To be married by common law, both parties must have the capacity to legally marry. Both parties must consent to enter into a marital relationship, the couple must live together as man and wife, hold themselves out as a married couple, and their reputation in the community must be that of a married couple. A woman who says, “I’ve lived with him for 30 years, but I’d never marry the bum,” would not be deemed by the courts to be the man’s common-law wife.

New Hampshire’s law should not be repealed but amended to specify that once the three-year cohabitation requirement has been met, a common-law couple is married. Here’s why:

In another New Hampshire case, the common-law wife of a federal employee applied for survivor’s benefits and, though the couple had lived together as man and wife for 15 years, she was denied. Federal rules required that to be eligible for survivor’s benefits, the woman had to have been married for a minimum of nine months prior to her husband’s death. Since New Hampshire only recognized her common-law marriage the moment her husband died, the court ruled, the widow didn’t meet the nine-month minimum and thus couldn’t collect. That should not have happened, and won’t happen to someone else, if New Hampshire’s law is rewritten.

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