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Common Law Marriage New Mexico



Quick Guide to Common-Law Marriage in NM

Common-law marriage laws in New Mexico do not allow recognition of the type of marriage.  Common law marriage in New Mexico was never recognized by the state, and until recently, the court would not even consider property division settlements or other settlements often heard by a court for recognized divorce and marriage requirements within a common-law marriage in NM.

Now, common-law marriage laws within the state still forbid a common-law marriage in NM, but a court may now recognize the validity of the type of marriage if the union was formed within another state in certain circumstances.  

Marriage Requirements in New Mexico

Marriage requirements are located within Article 1 of Chapter 40 of the New Mexico revised statutes.  According to marriage requirements under 40-1-1, to parties must give full consent to the marriage in New Mexico.  Additionally, several other sections discuss marriage requirements and void marriages that are listed below: 

• either party was under the age of 18 and failed to receive consent from legal guardians

• either party is under the age of 16, but a court in New Mexico may support the marriage in legal proceedings if the female is pregnant 

• all marriages between children

• between grandparents and grandchildren in all degrees

• between half brothers and sisters or of full blood

• between uncles/aunts and nieces/nephews 

As you can see, marriage requirements disallow many types of marriage, but common-law marriage laws will be recognized in certain circumstances for a common-law marriage in NM.  Cases in which a common-law marriage in New Mexico will be recognized are described in the section below, and §40-1-4 states that all marriage requirements recognized by other states will hold validity in the state of New Mexico. 

Validity of a Common-Law Marriage in New Mexico

Although there are few laws addressing a common-law marriage in New Mexico compared to laws for marriage requirements in other states, a court may also consider the validity of the common-law marriage in NM upon two conditions in a divorce proceeding: the man and woman have signed power of attorney papers while in the relationship, and the marriage was contracted in a state and district that recognized such a union according to their common-law marriage laws.  

In order to validate the common-law marriage in New Mexico, the court will consider several factors in certain cases like a divorce or separation proceeding.  The court will usually consider the following aspects of the common-law marriage in New Mexico: 

• the two parties actually cohabitated in an out of state jurisdiction

• the out of state jurisdiction had established common-law marriage laws and requirements

• the date of actually declaring the specific type of marriage can be established by the court

• if no common-law marriage laws exist within the other jurisdiction, the court must determine if there were any power of attorney documents signed prior to the cohabitation

If two couples want a recognized common-law marriage in NM that was formed in an out-of-state jurisdiction, the two couples are usually advised to sign power of attorney documents before declaring the common-law marriage in New Mexico.  Two couples will normally establish a durable power of attorney and medical power of attorney with help of a qualified legal professional to try and have a common-law marriage in New Mexico stand.  

If couples come to an agreement about the division of property along with other marriage requirements in a future separation in an out of state jurisdiction, the state may recognize such agreements in a common-law marriage in NM and common-law marriage laws.  If you are unsure the state will consider the marriage requirements, you should speak with an attorney to help determine if the common-law marriage in NM will hold validity.    

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