N.M. Stat. § 40-1-1 (2026)

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.

                                     ANNOTATIONS

Cross 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.