A putative marriage is legally invalid due a legal error, but where at least one spouse entered the marriage in good faith and were unaware of the error. These marriages are treated the same as common law marriages in the states that recognize putative marriages as valid.

What is an Example of a Putative Marriage?

One example of a putative marriage is when a couple gets married by someone who they believe is able to legally perform the ceremony (an ordained official), but in fact, that person was not ordained or legally authorized to complete a marriage ceremony and therefore the marriage is not valid.

Another example is when one spouse enters into a new marriage without completing a divorce from a previous marriage. While the previously married spouse may be aware that they are still married and ineligible to get remarried, the new spouse may be innocent and that makes them a putative spouse.

Sometimes both parties are putative spouses. This occurs when both parties believe a divorce is completed and proceed with the new marriage. In these instances, both parties are putative spouses.

Being a putative spouse simply means that they entered the marriage in good faith, without knowledge that it was in fact invalid.

How is Good Faith Determined?

The putative spouse doctrine is a subjective standard used to measure good faith. This doctrine is based on the belief that the couple is innocent and truly believed their marriage is valid and were unaware of the error.

However, as stated earlier, measuring good faith for a putative marriage is dependent on the circumstances and the evidence presented to the court. Examples of good faith are:

  • The spouse claiming good faith was shown a false divorce certificate by the other spouse;
  • The spouses had no idea that their marriage ceremony was not binding;
  • A spouse did not know that their divorce was not finalized; or
  • The spouses did not know that their marriage license was invalid.

What Rights Does a Putative Spouse Have?

In the states that recognize putative marriages, spouses have the same rights as those who enter into a legal common law marriage. Those rights are essentially the same as spouses who are formally and legally married.

However, the rights of a putative spouse depend on the laws of the state, for instance Montana is a equitable division states (meaning that the couples' assets are divided 50/50). So the putative spouse's rights may include (but is not limited to) spousal support; child custody and support; tax benefits; and/or health insurance.

How Does a Putative Marriage Differ from a Common Law Marriage?

A common law marriage occurs when two people live as a married couple, but never complete the formal legal process of getting married. It is often referred to as an informal marriage.

The primary difference between common law and putative is the ceremony requirement. Common law marriages do not require that both parties participate in some kind of ceremony to be married, but putative marriages require an element of formality.

Do I Need a Lawyer?

If you believe you are in a putative marriage and are looking to separate from your partner, then it is in your best interest to contact a local family lawyer. If you believe you have entered into a putative marriage or are dealing with divorce type proceedings from a putative marriage, a lawyer will be able to guide you through your rights and processes.