Normally, when I write about case law, it is a divorce or family law case. Today, of all things, a tax court case caught my attention as it dealt with the issue of whether New Jersey recognizes common law marriage.

In general, in states that do recognize common law marriage, it is generally defined as a legally recognized union between two people who haven’t obtain a marriage license or had a formal wedding ceremony, but rather, met specific state requirements which often involve living together for some period of time and holding themselves out to others as married. Note that this differs from palimony – a topic that I have argued before the New Jersey Supreme Court and have written about on this blog.

By statute, there is no common law marriage post December 1, 1939. One would think that this issue is pretty cut and dried, yet, it came up in an unpublished (non-precedential) New Jersey Tax Court case decided on October 8, 2025, entitled Gibbons v. Borough of South Plainfield.

In that case, Ms. Gibbons jointly owned a property with her partner who died in 2021. Prior to his death, the parties enjoyed a 100% property tax exemption as a permanently disabled veteran. Ms. Gibbons sought the continuation of the exemption after her partner’s death, but it was denied by the town because she was not his surviving spouse.

Plaintiff argued that as a surviving partner, she was entitled to the exemption continuation because they were husband and wife for all practical purposes, and it is unfair to treat her differently than surviving partners of other kinds of legally recognized unions. She also claimed that because she was Catholic, she could not marry him because he was divorced and her faith prevented her from having a religious wedding.

The Tax Court granted the town’s motion for summary judgment denying the exemption. In doing so, the court gave a pretty interesting primer on the issue.

Turning to the issues, the court noted that the exemption statute references but does not define the term “surviving spouse.” However, the statute that provides the veteran’s deduction defines “surviving spouse” to be a “surviving wife or husband.” The Court went on to note that due to the passage of the Domestic Partnership Act and then the Civil Union statute, the Administrative Code essentially expanded the definition to be consistent with those statutes.

The Court then noted that the statute that abolished common law marriage in New Jersey accomplished three things: (1) the abolition of common law marriage; (2) that a license to marry be procured before the ceremony and (3) the marriage be solemnized by an authorized person or entity.

In rejecting the plaintiff’s claim of unfairness, discrimination and disparate treatment noting that the Legislature did not foreclose plaintiff and her partner from legalizing their relationship. Simply put, they had a right to legally marry. Moreover, the court noted that:

In other words, they always had a right to legally marry unlike same sex couples who were afforded the right to a legalized union after recent legislation. See e.g. N.J.S.A. 26:8A-2(e) (Legislature recognized the equitable need for same sex couples
who were “unable to enter into a marriage with each other that is recognized by New Jersey law, unlike persons of the opposite sex who are in a domestic partnership but have the right to enter into a marriage that is recognized by State law and thereby have access to these health and pension benefits”) (emphasis added). Plaintiff and Mr. Haney simply chose not to avail themselves of this available legal right.

While Plaintiff may have desired a religious ceremony which was foreclosed due
to the rules governing a Catholic Church, they could still have had their relationship
formalized by a civil ceremony solemnized by any other person authorized by law to do so. See N.J.S.A. 37:1-13 (listing numerous civil officials – judges, mayors, county clerks, and civil celebrants, who are authorized to solemnize marriages). Thus, the unavailability of a religious ceremony, and Plaintiff’s religious doctrine/faith did not foreclose a civil marriage which the State freely made available. The statutory pathway was open and independent of ecclesiastical approval. The record does not show that Plaintiff sought, or was denied, a civil marriage license by an authorized official. Plaintiff’s failure to pursue a religious ceremony therefore does not establish that marriage, and the accompanying spousal status for purposes of the 100% exemption, was legally unavailable.

The Court then went on to hold that the personal choice not to marry “renders unpersuasive” plaintiff’s claims that she was harmed or that there was disparate treatment. Simply put, she was legally allowed to marry but chose not to do so.

Moreover, the court noted that while a common law marriage is a non-traditional relationship like a domestic partnership and civil union, there is a big difference in that both of those types of relationships “… require a legislatively imposed formalization of the relationship.”

The court further declined the invitation to analogize this situation to palimony and held:

In this connection, the court is unpersuaded that it should liberally construe the word spouse to include an unmarried person because courts have done so in the context of palimony awards. Those cases were premised upon the legal enforcement of oral or written agreements to take care of the other partner during a relationship, as an inducement to enter or stay in a relationship, in other words, as contract actions. See Maeker v. Ross, 219 N.J. 565, 576 (2014). They did not judicially bless a relationship deemed void by the Legislature, such as common law marriages. See Kozlowski v. Kozlowski, 80 N.J. 378, 387 (1979) (“emphasiz[ing] that” the court’s decision to award palimony to an unmarried person, based on an oral promise of support “has not judicially revived a form of common law marriage which has been proscribed in New Jersey since 1939 by N.J.S.A. 37:1-10”); Crowe v. De Gioia, 90 N.J. 126, 132 (1982) (“The Legislature has proscribed common law marriages. N.J.S.A. 37:1-10. We continue to decline to view non-marital relationships as if they were lawful marriages.”)

In short, the bottom line is that if you marriage like treatment, you need to “put a ring on it” or otherwise legally formalize the relationship.

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    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys. Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.