2024 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 1 - Marriage in General
Section 40-1-1 - [Marriage is civil contract requiring consent of parties.]
Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.
History: Laws 1862-1863, p. 64; C.L. 1865, ch. 75, § 2; C.L. 1884, § 978; C.L. 1897, § 1415; Code 1915, § 3425; C.S. 1929, § 87-101; 1941 Comp., § 65-101; 1953 Comp., § 57-1-1.
ANNOTATIONSCross references. — For marriage settlement and separation contracts, see 40-2-4 to 40-2-7 NMSA 1978.
For dissolution of marriage, see 40-4-1 NMSA 1978 et seq.
For jurisdiction of children's court to authorize marriage of minor, see 32A-1-8 NMSA 1978.
For magistrates solemnizing contract of marriage, see 35-3-2 NMSA 1978.
Purpose of marriage laws. — The purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property. Griego v. Oliver, 2014-NMSC-003.
Same-gender marriages. — Barring individuals from marrying and depriving them of the rights, protections and responsibilities of civil marriage solely because of their sexual orientation violates the equal protection clause of Article II, Section 18 of the New Mexico constitution. The state of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law. Griego v. Oliver, 2014-NMSC-003.
Meaning of the phrase "civil marriage" in New Mexico marriage laws. — The phrase "civil marriage" in New Mexico marriage laws shall be construed to mean the voluntary union of two persons to the exclusion of all others. All rights, protections and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples. When reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which in context denotes a marital relationship, the same shall apply to same-gender couples who choose to marry. Griego v. Oliver, 2014-NMSC-003.
Effect of section is to deny validity to mere consent marriage. In re Gabaldon's Estate, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672, 94 A.L.R. 980.
Marriage, standing alone, is presumed valid. — That is, the party attacking it carries the burden of proof and the invalidity must be proven by clear and convincing evidence. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Lack of evidence of license does not rebut presumption. — Mere lack of evidence of a record of the issuance of a license or of a ceremonial marriage is not sufficient to rebut the presumption of a ceremonial marriage. Trower v. Board of Cnty. Comm'rs, 1965-NMSC-040, 75 N.M. 125, 401 P.2d 109, overruled on other grounds Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Presumption attaches to marriage that is later in time. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Evidence to prove valid marriage. — While this article prescribes the manner in which a marriage may be solemnized in this state, nowhere does it set forth rules of evidence by which a valid marriage must be proven. The fact of marriage may be proven either by direct or circumstantial evidence, documentary evidence or by parol, and the sufficiency of the evidence to establish a marriage is governed by the general rules of evidence. Trower v. Board of Cnty. Comm'rs, 1965-NMSC-040, 75 N.M. 125, 401 P.2d 109, overruled on other grounds Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Common-law marriages historically invalid. — Until the enactment of this section, the law relating to marriages in New Mexico stood as if the rule of the council of Trent of 1563 was the law of the land, except as modified by the section compiled as 40-1-2 NMSA 1978. Under said rule, valid marriages must have been celebrated before the parish or other priest, or by license of the ordinary, and before two or three witnesses, and consent marriages were invalid. Section40-1-2 NMSA 1978 added only the provision that any clergyman or a civil magistrate could perform marriages, and the law of which the present section was a part added the first regulatory provisions without changing the basic foundation of lawful marriages. Since the civil law rule was modified by statute prior to the adoption of the common law as the rule of practice and decision here, the latter had no effect, and common-law marriages have never been valid in New Mexico. In re Gabaldon's Estate, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672, 94 A.L.R. 980.
Marriage is a contract. — In New Mexico, marriage is a civil contract which must be licensed and a contract in which the public is interested and to which the state is a party. In re Bivians Estate, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.
Marriage not recognized unless formally contracted and solemnized. — New Mexico does not recognize any marriage consummated therein which is not formally consummated by contract and solemnized before an official. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345; Merrill v. Davis, 1983-NMSC-070, 100 N.M. 552, 673 P.2d 1285.
De facto marriage not ground for retroactive modification of alimony. — A "de facto marriage," whatever may be required to constitute such, does not constitute grounds for retroactively modifying or abating accrued alimony payments; although, the district court does have discretion to modify prospectively or terminate an alimony award, if the circumstances so warrant, where the termination of alimony was largely predicated on its finding of a de facto marriage, the judgment of the trial court was reversed and the cause remanded. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345.
Civil claims between unmarried cohabitants disputing ownership of a business. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, and where defendant filed a motion for summary judgment, the district court did not err in granting defendant's motion on the breach of contract claim, because pursuant to New Mexico precedent, plaintiff had the burden to provide evidence resulting in reasonable inferences that the parties entered into an express agreement to jointly own property, and it was undisputed that there was never any written contract and there was no evidence of a verbal contract between the parties. An inference based on the parties' conduct that a contract existed is an implied contract, which is insufficient to raise a genuine issue of fact regarding whether two cohabitating parties entered an agreement to jointly own property. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Summary judgment improper where unmarried cohabitant was unjustly enriched. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, and where defendant filed a motion for summary judgment, the district court erred in granting defendant's motion on the unjust enrichment claim, because to establish unjust enrichment, plaintiff was required to demonstrate a genuine issue of fact regarding whether defendant knowingly benefitted at plaintiff's expense in such a manner that allowing defendant to retain the benefit would be unjust, and in this case, plaintiff presented evidence that she worked at the business without compensation for at least two years, which is sufficient evidence to allow reasonable minds to differ on whether defendant received unjust benefits from plaintiff's professional services. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Promissory estoppel not warranted for unmarried cohabitant providing homemaking services. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, and where plaintiff relied on the homemaking services she provided as evidence of a reasonable inference that defendant made a promise to share ownership of the business, the district court did not err in granting defendant's motion for summary judgment on the promissory estoppel claim, because homemaking services provided in the context of the romantic relationship do not lead to a reasonable inference that defendant promised half ownership of the business, and there was no evidence that defendant made an actual promise which in fact induced action or forbearance on the part of plaintiff. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Unmarried cohabitant failed to demonstrate negligent misrepresentation. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, the district court did not err in granting defendant's motion for summary judgment on the negligent misrepresentation claim, because for plaintiff's negligent misrepresentation claim to survive a motion for summary judgment, plaintiff was required to raise issues of fact that defendant made a material misrepresentation to plaintiff, that plaintiff relied upon the representation, that defendant knew the representation was false or made it recklessly, and that defendant intended to induce reliance by plaintiff, and in this case, plaintiff failed to provide any evidence that defendant made an express representation to plaintiff that the parties jointly own the business, and therefore plaintiff failed to provide evidence that would lead to a reasonable inference that defendant knew any misrepresentation made was false or made recklessly, or that defendant intended to induce reliance by plaintiff. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Unmarried cohabitant failed to demonstrate common law fraud. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, the district court did not err in granting defendant's motion for summary judgment on the common law fraud claim, because for plaintiff's common law fraud claim to survive a motion for summary judgment, plaintiff was required to raise issues of fact that defendant misrepresented a fact that he knew to be false, it was made with the intent to deceive and to induce plaintiff to act in reliance, and that plaintiff actually relied on the representation to her detriment, and in this case, plaintiff failed to provide any evidence that defendant made a representation that he knew to be false with the intent to deceive and to induce plaintiff to act in reliance. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Unmarried cohabitant failed to provide evidence of constructive fraud. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, the district court did not err in granting defendant's motion for summary judgment on the constructive fraud claim, because an action for constructive fraud is maintainable where there is a nondisclosure of material facts and the person charged with the constructive fraud had a duty to speak under the circumstances, and in this case, plaintiff failed to provide any evidence of an express agreement to share ownership of the business and therefore there was no evidence that defendant owed plaintiff a duty to speak under the circumstances, and, because the parties were not married, there was no fiduciary relationship between the parties. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Unmarried cohabitant failed to provide evidence of conversion by demand and refusal. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, and where defendant claimed that there were material facts that demonstrate she had ownership and right to possession of one-half interest in the business because she formed a partnership with defendant and thus defendant is liable of conversion by demand and refusal because he engaged in deceptive practices in order to have the corporation established without granting 50 percent of the stock in the corporation to plaintiff, the district court did not err in granting defendant's motion for summary judgment on the conversion claim, because plaintiff failed to establish a question of fact regarding her right of possession of personal property because a business partnership between unmarried cohabitants requires an express contract. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Unmarried cohabitant failed to provide evidence of prima facie tort. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, and where plaintiff claimed that by failing to convey half the interest of the business to plaintiff, there was a reasonable inference that defendant intended to injure plaintiff, the district court did not err in granting defendant's motion for summary judgment on the prima facie tort claim, because plaintiff failed to raise a material issue of fact as to the absence of justification for the alleged injurious act and failed to provide any evidence that leads to a reasonable inference that the parties entered into an express agreement to jointly own the business. Accordingly, defendant was justified in not conveying any business interest to plaintiff. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Unmarried cohabitant failed to provide evidence of covenant of good faith and fair dealing. — Where plaintiff and defendant lived together as an unmarried couple from 2005 to 2015, and where plaintiff claimed that the parties agreed to start a business together and agreed to share ownership of that business, and where, after the parties separated in 2015, plaintiff filed suit against defendant for breach of contract, unjust enrichment, promissory estoppel, common law fraud, constructive fraud, conversion, negligent representation, breach of implied covenant of good faith and fair dealing, and prima facie tort, the district court did not err in granting defendant's motion for summary judgment on the implied covenant of good faith and fair dealing claim, because the parties' cohabitating romantic relationship required them to enter into an express agreement to jointly own property, and plaintiff failed to provide evidence of an express agreement. Therefore, there is no agreement and no implied covenant of good faith and fair dealing. Battishill v. Ingram, 2024-NMCA-001, cert. denied.
Special power of attorney for application and marriage by proxy. — The execution of a special power of attorney, for the purpose of participating in the application for a marriage license and subsequently in a marriage ceremony by proxy, should be before a person authorized to administer oaths, including military officers on active duty and should specify completely the required information as to age, relationship of the engaged persons, consanguinity, present marital status, and a specific statement authorizing the named attorney in fact or proxy to enter into a contract with the person named. 1957 Op. Att'y Gen. No. 57-13.
Law reviews. — For article, "Annulment of Marriages in New Mexico: Part II - Proposed Statute," see 2 Nat. Resources J. 270 (1962).
For note and comment, "The Irrational Legacy of Rooner v. Evans: A Decade of Judicial Review Reveals the Need for Heightened Scrutiny of Legislation that Denies Equal Protection to Members of the Gay Community," see 36 N.M.L. Rev. 565 (2006).
For note and comment, "New Tort Rules for Unmarried Partners: The Enhanced Potential for Successful Loss of Consortium and NEID Claims by Same Sex Partners in New Mexico After Lozoya," see 34 N.M.L. Rev. 461 (2004).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Marriage §§ 4, 6, 7.
Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.
Marriage between persons of the same sex, 81 A.L.R.5th 1.
55 C.J.S. Marriage § 18.