A putative marriage is a marriage that appears to be valid, but legally is considered invalid due to some sort of procedural legal error, such as not divorcing a former spouse before entering into the new marriage.

In a putative marriage scenario, there is typically at least one spouse who agreed to the marriage in good faith and was unaware of the existing error.

Additionally, states treat putative marriage arrangements in the same way as they do common law marriages.

Briefly, a common law marriage essentially occurs when a couple lives together for a certain period of time and holds themselves out as being married, but have not gone through the formal process of marriage.

Therefore, since only certain states recognize common law marriages, these are also generally the same states that will permit and recognize putative marriages under their laws. As for the states that do not see common law marriages as a legally valid union, they usually will not recognize putative marriages either under their state statutes.

What is an Example of a Putative Marriage?

There are several common scenarios that frequently come up when dealing with issues that potentially illustrate that a putative marriage has occurred.

For example, a putative marriage can happen when a couple is married by another individual who they believe is legally allowed to perform their ceremony (e.g., an ordained official), when in fact, this person is not actually ordained or legally authorized to perform a marriage ceremony. Therefore, their marriage will not be considered legally valid.

As discussed above, another instance that may cause a putative marriage arrangement is when one of the spouses enters into the new marriage without being granted a divorce from a prior marriage. While the spouse who was previously married may be aware that they are still married to their former spouse and thus ineligible to get remarried to their new one, the new spouse may not know about the situation, making them a putative spouse.

There are some cases, however, where both parties to a marriage may be putative spouses. This scenario happens when both parties believe that a prior divorce was finalized, so they proceed with the new marriage ceremony. Under these circumstances, both parties will be viewed as putative spouses.

Simply put, the term “putative spouse” basically means that a party entered into the marriage in good faith and without the knowledge that the marriage was in fact invalid for one reason or another.

How is Good Faith Determined for a Putative Marriage?

Good faith is determined by using a subjective standard that is known as the “putative spouse doctrine.” The doctrine is based on the belief that the couple is innocent and genuinely believed that their marriage was valid and were unaware of any of the errors making it invalid.

In general, the standard for measuring good faith regarding putative marriage typically depends on the circumstances surrounding the marriage and the evidence presented by the parties in court.

Some examples of evidence that may show good faith include:

  • When the spouse who is claiming to have married in good faith can show the court that the deceiving party presented them with a false divorce certificate;
  • If neither spouse was aware of the fact that their marriage ceremony was not actually binding (e.g., performed by an unauthorized official);
  • When one or both of the spouses did not know that a divorce from a former spouse was not finalized; or
  • If the spouses were not aware that their marriage license is invalid.

What Rights Does a Putative Spouse Have?

As discussed above, not all states recognize putative marriages. In the states that do recognize putative marriages, however, the spouses will have the same rights as those who enter into a legal common law marriage. The rights provided by a legally recognized common law marriage are essentially the same rights given to spouses who are formally and legally married.

Also, many of the rights that putative spouses have will depend on the laws of their particular state.

For instance, the state of Montana follows equitable distribution principles. This means that the couples’ property and assets will be divided fairly, not necessarily 50/50. Thus, the putative spouse’s rights in Montana may include obtaining spousal support, gaining child custody and/or support, receiving certain tax benefits, and getting health insurance from the other spouse.

How is a Putative Marriage Different from a Common Law Marriage?

As briefly mentioned, a common law marriage occurs when two people live together as a married couple, but never follow through with the official legal process of getting married. This is why it is often referred to as an “informal marriage.”

The main difference between common law marriages and putative marriage arrangements is the ceremony requirement. Common law marriages do not require that both parties participate in a formal ceremony in order to be married. In contrast, putative marriages do require the elements of formality, such as a marriage ceremony.

Should I Hire a Lawyer for Help with Issues Involving a Putative Marriage?

If you believe that you have entered into a putative marriage arrangement and are currently seeking a way to either separate or get a divorce from your partner, then it may be in your best interest to contact a local family lawyer for further assistance.

An experienced family lawyer can determine whether or not your arrangement is considered a putative marriage, what your options are for separation or divorce in accordance with the laws of your state, and can help guide you through the different procedures involved for each.

Additionally, your lawyer can also explain what rights you have as a putative spouse or as a party to a putative marriage.