CULLMAN – Back in June, Gov. Robert Bentley signed a bill abolishing common law marriage in the state of Alabama. That law went into effect on Jan. 1, 2017.
Cullman County Probate Judge Tammy Brown issued the following statement (presented in-full) regarding the matter on Thursday:
All couples who met the requirements of common law marriage prior to Jan. 1 will continue to be recognized as common law under Alabama law.
The requirements for a common law marriage to exist include:
- Both parties have the mental capacity to marry/be of sound mind and age
- Both parties have a mutual agreement to be married
- Both parties hold themselves as husband and wife to friends, family and the public
Contrary to popular belief, there is no time requirement for cohabitation.
Common law marriages are not registered as a religious or civil marriage, (but) were considered a marriage nonetheless.
The courts in Alabama are asked to determine whether a common law marriage exists in will contests in probate court. In will contests, the common law spouse will claim a portion of the deceased’s estate. 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. Many wonder when a common law marriage begins and ends. That is not always easy to determine since this type of marriage is based on informal characteristics.
In probate court, the facts, circumstances and the history of the relationship are presented to the court for the judge to make the best judgment to whether or not intent was proved. It can be difficult.
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.
Another concern is even when a relationship begins in a state that does not recognize common law marriage, if the couple relocates to a state that recognizes common law marriage, a common law marriage between the parties is often recognized if the couple’s relationship continues in the new state. It has not been uncommon for someone to claim to be a spouse based upon time the couple spent together in a common law marriage state even after the couple leaves that state.
Cases involving common law marriage filed in probate court before the Jan. 1, 2017 deadline will be heard and a final ruling entered.
For more information, visit http://www.cullmancourts.org/probatecourt.html.
