Over the summer, Governor Bentley signed a bill abolishing common-law marriages after January 1, 2017. No new common-law marriages will be recognized in Alabama. However, all couples who meet the requirements of common law marriage prior to January 1, 2017, will continue to be recognized as common law married under Alabama law.
Common-law marriage is no longer recognized in many states. The requirements vary greatly from state to state. In Alabama, the law requires that (1) both parties have “legal capacity” to marry – aka they are both of age and sound mind; (2) you both agree to “get and be married;” and (3) hold yourselves out as “husband and wife” to friends, family, and the public. Contrary to popular belief, there is no time requirement for cohabitation.
The courts in Alabama are asked to determine whether a common-law marriage exists in will contests and divorces. In will contests, the common-law spouse will claim a portion of the deceased estate. In divorce cases, the common-law spouse will file for divorce asking for alimony or child support, while the other party claims there was no marriage. The removal of common law marriage makes what was a very gray area of the law, very black and white. Do you have a marriage certificate or not? If not, there is no marriage.
For those of you in a common-law marriage prior to January 1, 2017, the Alabama Courts will continue to evaluate the validity of your marriage based upon factors that tend to prove the three requirements of common law marriage laid out above.
Some commentators are concerned that same-sex couples will be adversely affected by this law because of the possibility of their right to marry being denied in the future. If the right to marry a partner of the same sex is overturned in the future, these couples will not be able to fall back on common law marriage.
Others are concerned that the abolishment of common law marriage will force individuals to marry. We do not believe that this will be the case. However, if you do choose to stay in a long-term relationship without the benefit of marriage, especially with children, we recommend that you speak to an attorney about several things, particularly finances.
We hope that this clears up any questions you may have had regarding how this new law will affect you going forward. If you have any concerns or questions, please call our office at (334) 373-2981 to set up a consultation.