Legal Rights for Non-Married Couples
Unrecognized “Marriages” Under Kentucky Law
Common Law Marriage
Common law marriage, sometimes called “de facto” marriage, occurs when the parties agree to be married to each other and hold themselves out as husband and wife to the rest of the community without undergoing the formal state-sanctioned marriage proceedings. Kentucky does not recognize common law marriages contracted within Kentucky. Pendleton v. Pendleton, 531 S.W.2d 507, 509-510 (Ky. 1976). Therefore, parties who allegedly entered into a common law marriage in Kentucky may not use Kentucky courts to formally adjudicate their divorce or related issues.
Kentucky does however recognize a common law marriage valid in the state in which it was contracted. Glidewell v. Glidewell, 790 S.W.2d 925 (Ky. Ct. App. 1990). To prove a valid common law marriage entered into in another state, the parties must demonstrate that the law of the state in which the marriage was contracted permits common law marriage, and that the requirements of the law have been met in their case.
Same Sex Marriage
It is clear that same sex marriage is currently not an option in Kentucky. According to statute, it is against public policy. KRS 402.040(2). Further, there is currently no domestic partnership or civil union statute in Kentucky to confer many of the governmental benefits typically awarded to spouses to gay couples. As it stands, those in a same sex relationship are regarded merely as unmarried cohabitants if they in fact live together.
Cohabitation simply means living together. In the domestic relations context, it implies the existence of an intimate/romantic relationship and a long-term or permanent residence together. When two people in a relationship live together and are not married, they are said to be unmarried cohabitants.
There are many reasons why two individuals in a romantic relationship may choose to live together without being married:
- It’s an opportunity to “test” a relationship and compatibility with a partner before delving into marriage
- It’s a transitional step before marriage occurs
- It is a way to save money by reducing individual housing expenses
- It allows the parties to spend more time with one another
- It marks a significant step in a relationship in which either or both parties was previously married and is skeptical of or hesitant to remarry
- It avoids all marital property laws – property division and maintenance – which may be especially attractive to a person with some measure of wealth
- Either or both parties may simply not believe in marriage or wish to ever be married
- The parties cannot legally be married: same sex couple, existing prior marriage, non-citizenship, etc.
Accordingly, unmarried cohabitation is very common. According to a 2011 USA Today article, more than 60% of couples who marry live together first, and there are at least 7.5 million cohabiting couples in the U.S, a figure that is on the rise.
In Kentucky, like in most other states, family or domestic relations laws are focused on the marital relationship and what happens when it ends. In a recent case, the Kentucky Court of Appeals makes it clear that, “[i]f a legally valid civil marriage existed, the parties would be subject to the rights and obligations arising under our dissolution laws; but if not, the parties would not.” Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky.Ct.App. 2011). The dissolution laws that apply only to legally married couples are those relating to the spouses’ finances: property division and maintenance.
How Cohabitation Affects Property Division and Maintenance
One of the major issues resolved via a divorce decree is a division of the marital property “in just proportions.” KRS 403.190. Kentucky courts have made it clear that intimate unmarried relationships, even those of a long-standing and committed nature, do not give rise to property rights equal to those enjoyed by married persons. To hold that property rights may accrue from anything less than a legal marriage would effectively institute common law marriage. Murphy v. Bowen, 756 S.W.2d 149, 150 (Ky. Ct. App. 1988). Accordingly, persons who have cohabited without marriage will not have their property divided at termination of the relationship, as divorcing parties may.
Following a divorce, maintenance (also known as alimony) is intended to assist the supported spouse move forward and become financially self-sufficient. An award of maintenance should approximate the standard of living established during the marriage. According to statute, it may be awarded if the party seeking it lacks property to provide for his or her needs and is unable to support himself or herself through appropriate employment. KRS 403.200. However, like the division of marital property, maintenance does not make sense unless a marriage was entered into, so this is not available to unwed cohabitants.
How Cohabitation Affects Child Custody and Visitation, Child Support
When unmarried cohabitants have children, the laws pertaining to child custody, visitation / timesharing, and child support are identical to those used for married couples. This is largely due to the fact that the laws surrounding these issues focus on the child rather than the status of the parents, and seek to achieve resolutions “in accordance with the best interests of the child.” See KRS 403.270(2). Therefore, an unmarried cohabiting parent is free to petition the court for sole or joint custody; to request, modify or terminate formal timesharing; or to award, modify, or terminate an existing child support order.
Unmarried couples face many of the same issues at the end of their relationship as those affecting divorcing couples. However, property rights laws affect unmarried couples and married couples very differently. Instead of accepting this situation, parties are free to contract between themselves to secure rights similar to those afforded to married couples or otherwise determine a property division arrangement should the relationship end. A cohabitation agreement may establish certain expectations – financial or otherwise – during the relationship and spell out what would happen should the relationship dissolve.