2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 1 - Marriage in General
Section 40-1-4 - [Lawful marriages without the state recognized.]

All marriages celebrated beyond the limits of this state, which are valid according to the laws of the country wherein they were celebrated or contracted, shall be likewise valid in this state, and shall have the same force as if they had been celebrated in accordance with the laws in force in this state.

History: Laws 1862-1863, p. 64; C.L. 1865, ch. 75, § 10; C.L. 1884, § 986; C.L. 1897, § 1423; Code 1915, § 3429; C.S. 1929, § 87-105; 1941 Comp., § 65-104; 1953 Comp., § 57-1-4.

Validity governed by law of place where performed. — New Mexico applies the rule of comity, that the law of the place where the marriage is performed governs the validity of that marriage. In re Estate of Lamb, 1982-NMSC-130, 99 N.M. 157, 655 P.2d 1001.

Common-law marriage valid where consummated, valid in New Mexico. — Although a valid common-law marriage may not be consummated in New Mexico, if valid where consummated, it will be recognized in New Mexico. Gallegos v. Wilkerson, 1968-NMSC-156, 79 N.M. 549, 445 P.2d 970.

De facto spouse under Australian law was not a marriage. — Where an Australian court determined that petitioner was the de facto spouse of the decedent under the Australian property relationships law based on the facts that petitioner and decedent had a twenty-year relationship, lived together openly and publicly, and were involved in each other's business and economic affairs; the Australian property relationships law conferred the same succession rights on de facto spouses as it conferred on spouses in marriage; the Australian court expressly stated that the Australian property relationships law did not create a marriage; petitioner and the decedent were not married to each other; and the de facto spouse status conferred by the Australian property relations law was distinct from the status of marriage under both the Australian marriage law and the Australian family law; and the de facto relationship was not a common-law marriage, the de facto spouse relationship under the Australian property relationships law was not a marital relationship under New Mexico law. Dion v. Rieser, 2012-NMCA-071, 283 P.3d 871, cert. denied, 2012-NMCERT-006.

Comity. — Although this state does not authorize common-law marriages, it will recognize such marriages if valid in the jurisdiction where consummated. New Mexico applies the rule of comity, that the law of the place of contract governs the validity of a marriage. In re Estate of Bivians, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.

What constitutes common-law marriage. — Common-law marriage is considered to be a status arrived at by express or implied mutual consent or agreement of the parties, followed by cohabitation as husband and wife and publicly holding themselves out as such. Gallegos v. Wilkerson, 1968-NMSC-156, 79 N.M. 549, 445 P.2d 970.

Validity of common-law marriage formed in foreign jurisdiction governed by its law. — To determine whether a valid common-law marriage was formed in a foreign jurisdiction, it is necessary to look to the substantive law of that jurisdiction. The threshold question is whether a couple established significant contacts with a jurisdiction recognizing common-law marriage. In re Estate of Lamb, 1982-NMSC-130, 99 N.M. 157, 655 P.2d 1001.

New Mexico law applies as to evidence required for validity. — Although foreign law determines the requisites of an asserted foreign common-law marriage, New Mexico law determines the competency, admissibility, quality, degree and quantum of evidence required to establish the vital facts. In re Estate of Bivians, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.

Transmuting illicit relationship into valid common-law marriage. — For an illicit relationship to become transmuted into a valid common-law marriage, the evidence must show actual matrimony by mutual consent of each of the parties within the state authorizing common-law marriage, plus each of the other elements required in that jurisdiction. In re Estate of Bivians, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.

Proof required where original relationship in this state illicit. — If the original relationship of a couple in New Mexico is illicit and the couple continue to maintain legal residence in New Mexico, a common-law marriage cannot be inferred absent proof of each element necessary to establish a common-law marriage and a showing of substantial contacts by the parties with the state where the alleged common-law marriage occurred. In re Estate of Bivians, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.

Evidence of common-law marriage in Texas. — Where proof is present that parties went to El Paso, rented an apartment, agreed to a marriage between themselves, lived together there, and held themselves out as husband and wife, the finding of the court of a valid common-law marriage in Texas is thus supported by substantial evidence and should not be disturbed by supreme court. Gallegos v. Wilkerson, 1968-NMSC-156, 79 N.M. 549, 445 P.2d 970.

Common-law marriage of New Mexico residents. — This section makes lawful "all marriages celebrated beyond the limits of this state, which are valid according to the laws" of the place where celebrated. No exception is made for residents of New Mexico. That the court should not hold invalid a common-law marriage contracted by the parties in Texas, even though residents of New Mexico, would seem to be the direction of the section. Gallegos v. Wilkerson, 1968-NMSC-156, 79 N.M. 549, 445 P.2d 970.

Uncle/niece marriages. — This state recognizes the general rule, which is that a marriage valid when and where performed is valid everywhere, and has no judicial decision invalidating an uncle-niece marriage validly contracted outside the state. Leszinske v. Poole, 1990-NMCA-088, 110 N.M. 663, 798 P.2d 1049, cert. denied, 110 N.M. 533, 797 P.2d 983.

Same-sex marriages. — A same-sex marriage that is valid under the laws of the country or state where it was consummated would be found valid in New Mexico. 2011 Op. Att'y Gen. No. 11-01.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Habit and repute as essential to common-law marriage, 33 A.L.R. 27.

Common-law marriage between parties to divorce, 82 A.L.R.2d 688.

Divorced woman's subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree, 98 A.L.R.3d 453.

55 C.J.S. Marriage § 8.