Is New Mexico a Common Law State?

by Ty McDuffey, JD | Ask Law Easy

When someone asks, “Is New Mexico a common law state?,” they usually want to know two key things:

1. Whether New Mexico follows the general principles of the common law (judge-made law) in its courts.
2. Whether New Mexico recognizes common law marriage within its jurisdiction.

Below, we address both points, cite the relevant case law, and clarify New Mexico’s stance on common law marriage and out-of-state common law marriages.

Common Law in New Mexico

Yes, New Mexico follows the common law, but with some limits. In Lopez v. Maez, 98 N.M. 625 (1982), the Supreme Court of New Mexico clarified that the state recognizes the common law as the rule of practice and decision, except where:

• It has been superseded by statute or the state constitution, or
• It has been declared inapplicable to local conditions in New Mexico.

This means courts in New Mexico will use common law principles to decide cases unless there is a specific statute or constitutional provision that overrides or modifies those principles.

Does New Mexico Have Common Law Marriage?

A frequently asked question is, “Does New Mexico have common law marriage?” Put simply, no, the state does not allow common law marriages to be formed within its jurisdiction.

In Merrill v. Davis, 100 N.M. 552 (1983), Medina v. Medina, 139 N.M. 309 (2006), and Dominguez v. Cruz, 95 N.M. 1 (1980), the courts made it clear that for a marriage to be valid in New Mexico, it must be:

1. Formally entered into by contract, and
2. Solemnized before an appropriate official in compliance with statutory requirements.

Consequently, New Mexico is not a common law marriage state for couples looking to form such a relationship within New Mexico’s borders.

Does New Mexico Recognize Common Law Marriage?

While New Mexico does not permit forming a common law marriage locally, it does recognize a valid common law marriage created in a jurisdiction that allows it. This principle of “comity” holds that if a couple validly enters into a common law marriage in a state where it is legal—like Texas—New Mexico courts will honor that marriage as valid.

Several cases support this position, including:

• Fellin v. Estate of Lamb (In re Estate of Lamb), 99 N.M. 157 (1982)
• Dion v. Rieser, 2012-NMCA-070
• In re Estate of Bivians, 98 N.M. 722 (1982)

These decisions confirm that New Mexico does recognize common law marriage when couples move from a state that permits such marriages, ensuring continuity of marital rights and obligations.

Key Takeaways

1. Is New Mexico a common law state?
   • Yes, New Mexico applies the common law except where it’s overridden or deemed inapplicable.
2. Is New Mexico a common law marriage state?
   • No, the state does not allow common law marriage to be established within New Mexico.
3. Does New Mexico have common law marriage?
   • Internally, no. But it will recognize valid out-of-state common law marriages under the principle of comity.
4. Does New Mexico recognize common law marriage from another state?
   • Yes, as long as that marriage was validly formed in a jurisdiction permitting common law marriage.

People Also Ask

1. Can I establish a common law marriage in New Mexico if I’ve lived with someone for a long time?
   • No. Simply cohabiting does not create a marriage in New Mexico.
2. Do I need a marriage license in New Mexico?
   • Yes. New Mexico law requires a license and solemnization before an authorized official.
3. Will New Mexico recognize my Texas common law marriage if I move there?
   • Yes, if it was validly formed under Texas law.

Cited Cases (in order of mention)

1. Lopez v. Maez, 98 N.M. 625 (1982)
2. Merrill v. Davis, 100 N.M. 552 (1983)
3. Medina v. Medina, 139 N.M. 309 (2006)
4. Dominguez v. Cruz, 95 N.M. 1 (1980)
5. Fellin v. Estate of Lamb (In re Estate of Lamb), 99 N.M. 157 (1982)
6. Dion v. Rieser, 2012-NMCA-070
7. In re Estate of Bivians, 98 N.M. 722 (1982)

Does New Mexico Have Common Law Marriage? – Final Thoughts

While New Mexico is a common law state in the broader sense—adopting common law principles where not superseded by statute—it is not a common law marriage state. Does New Mexico have common law marriage? No, not within its borders. However, does New Mexico recognize common law marriage established in another state? Yes, it will respect that out-of-state legal status under the doctrine of comity.

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