There is a lot of confusion and misinformation about a newly passed statute and its impact of common law marriage in Alabama. I had a client this week who evidenced this confusion. Her 18 year partner died and her partner’s children were demanding his assets. The had never formally been married but they had lived together the entire time. They had held filed taxes as married, they had been sexually active with each other through the years; and, otherwise held themselves out to the public as being married. She had heard of a new Alabama law outlawing common-law marriage.
In fact, on January 1, 2017, a statute passed by the Alabama Legislature went into effect. It did alter the law in Alabama concerning common-law marriage in important ways. However, it did not totally eliminate all common-law marriages as some, like my client, understand. The new statute, Section 30-1-20, merely states the following:
(a) No common-law marriage may be entered into in this state on or after January 1, 2017. (b) An otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state.
Accordingly, if a common-law marriage had been established prior to January 1, 2017, its a valid marriage. But if the elements of common-law marriage came into existence and merged after January 1, 2017, the statute would not allow for the recognition of the marriage.
So what makes for a common-law marriage? There has always been a lot of misunderstanding of the law here as well. Living-together does not make a common-law marriage by itself.
Generally, three elements must exist in order to constitute a valid common-law marriage: there must be (1) capacity, (2) present agreement or consent to be husband and wife, and (3) consummation. Piel v. Brown, 361 So. 2d 90 (Ala. 1978). That case discusses those components at length and it summarized the second element in this manner: “In all cases then, the question is whether the evidence discloses facts manifesting a mutual intention by the parties to be man and wife. This manifestation must show present intention, not an intention to marry in the future.
In real life practice, in my opinion, these are the necessary facts which prove common-law marriage in court:
(1) Did the couple cohabitate or live together?
(2) Was there a consummation of the marriage aka sexual relations?
(3) Did the couple hold themselves out as being husband and wife? You cannot be common-law married in secret. Accordingly, look at tax records, family reputation, and bank accounts for evidence of public acknowledgement of the marriage.
