Legislative Update: Common-Law Marriage

In February of this year, a bill was proposed to abolish all common-law marriages entered into on or after January 1, 2017; that bill passed the legislature and was signed by Governor Bentley on May 3. Below is a summary of important points regarding the elements of common-law marriage and how this may impact family law and estate cases in the future.

A common-law marriage is a legally recognized marriage without all or some of the pre-requisites of a statutory marriage, such as a valid marriage license or no marriage solemnization. However, there are still necessary elements to a common-law marriage that must be proven in court: (1) Both parties must have mental capacity to enter into a marriage; (2) Mutual consent to enter into a marital relationship, exclusive to all others; (3) public recognition of the marital relationship (holding yourselves out to be married in public); (4) cohabitation or mutual assumption of marital duties and obligations.

Alabama law states that until there is legal recognition of the proof of these elements in a court of law, the common-law marriage is not enforceable. For common-law spouses who are seeking a divorce or who are seeking to participate in their deceased spouse’s estate, this means that an entire case must be built to prove the common-law elements before any arguments or claims can be made for division of property (divorce) or for homestead rights (estate). If these elements are not met, then the relationship is not a marriage and the rights provided to spouses in divorces and estates would not be available.

The new law seeks to prevent common-law marriages that are “entered into” on or after January 1, 2017, even if the elements for common-law marriage exist. This law, DOES NOT, however, prevent a person from proving that a common-law marriage existed before January 1, 2017. So, if a couple entered into a common-law marriage in the 1990s, but the court hearing to prove those elements does not take place until 2020, the court will permit the case to go forward and enter an appropriate order if the elements are proven.

Many of the consequences of the elimination of common-law marriages will be restricted to family law and estate law. Long-term relationships that would have been common-law marriages after January 1, 2017 will no longer be recognized as anything other than dating relationships. Rights to alimony, property division, homestead and spousal exemptions in estates and all other rights that married spouses have in Alabama would not be available.

A large number of common-law marriages are created in Alabama as a result of violations of the “60-day” rule entered in every divorce in Alabama. Divorce decrees in Alabama contain a clause stating that neither party can get married within 60 days from the date of the divorce order. For whatever reason, some people get remarried to another person or even to the person they just divorced within that 60-day period. Even with a valid marriage license, ceremony, witnesses, etc. those marriages are not statutorily valid or legal; instead, people in those scenarios had to prove the elements of a common-law marriage before getting a divorce or participating in an estate as a spouse. After January 1, 2017, violations of the 60-day rule will no longer have the safety net of a common-law marriage. With this legal change, now those violations will simply result in invalid marriages with none of the statutory rights available.

What does this mean? Common-law marriages are not abolished out-right because those types of marriages that were entered into before January 1, 2017 are still valid if proven in court. However, cases to prove common-law marriages will certainly become more contentious. Do not assume that simply because you have a long-term relationship, share bank accounts, file taxes together, or act in any other ways that typical married couples act, that you have a “common law marriage”. Contact Martinson & Beason to discuss your family situation and we will be happy to speak with you about your options and how this new law may affect you.