Can you get divorced without ever being married?

            In a recent case decided on January 13, 2012, the New Hampshire Supreme Court decided that very question. The case is titled In the Matter of Mallet v. Mallet, and it involved a couple that had lived together for almost fourteen years. This was no ordinary unwed couple, as they had children together, repeatedly told others they were married, wore wedding rings, owned property together, shared the same last name, and even told people they had participated in a wedding ceremony.

The mother, Tami, petitioned for divorce and argued that they were married by “estoppel”. Estoppel is a legal concept that involves three basic factors: (1) a knowingly false representation or concealment of material facts; (2) a recipient who was ignorant of the truth and who was intentionally induced to rely on the misrepresentation; and (3) a resultant injury. The Court decided not to address whether New Hampshire would even recognize a marriage by estoppel, because the mother never believed that the parties were married. Thus, it failed prong two of the estoppel test, as Ms. Mattel was never ignorant of the truth that they had never been married.  However, there still remained the question as to whether it was proper for the Conway Family Division to divide the parties’ assets, debts and property when they were never married.

Judge Albee, the parties’ Judge at the Conway Family Division, had decided that such claims were within the jurisdiction of the Family Court. The Supreme Court disagreed. At issue was the language of New Hampshire statute RSA 490-D:2, which governs the jurisdiction of the Family Divisions of New Hampshire. Typically, the family division does not have jurisdiction over division of assets or debts between parties that are unmarried. That jurisdiction typically lies with the Court of Equity, which are our Superior Courts. Judge Albee felt it was inequitable to have the Mallet’s property division case in the superior court, and the determination of the parties’ parenting rights and responsibilities to be determined in the family court. The Supreme Court found this decision was ignoring what they called ‘the plain language of [the statute].’ The Supreme Court held that the Family Division’s jurisdiction is only acceptable in division of property cases if it is brought through a divorce from a legally recognized marriage. Without the legally recognized marriage in the Mallet’s case, the Court found that the Conway Family Division incorrectly assumed jurisdiction. This meant that the Mallets would have to divide their property and debts through the Superior Court, while also needing to continue the parenting case in the family court.

To divide unwed property, assets, and debts, unwed persons must file a petition to partition, which also has its own statute (RSA 457-C). Here at Parnell & McKay, we have taken on a number of unwed cases and had to pursue each aspect in both courts. Is this a fair ruling by the Supreme Court given the complaints of judicial waste in New Hampshire? Please comment below and let us know how you feel about this ruling. To read the ruling yourself, click here: (http://www.courts.state.nh.us/supreme/opinions/2012/2012008mallett.pdf).