Very soon, common law marriages in the state of Alabama will no longer be quite so common in the future. When Alabama House Bill 332 becomes law and goes into effect Jan. 1, 2017, the Act will abolish common law marriages in Alabama that are entered into on or after that date.
For years, our country and this state have been comprised of laws enacted by our legislatures and the common law. Black’s Law Dictionary defines common law marriage as:
“One not solemnized in the ordinary way, but created by an agreement to marry, followed by cohabitation; a consummation agreement to marry, between persons legally capable of making a marriage contract, per verba presenti; followed by cohabitation.”
Common law is comprised of a body of principles and rules of action which derive their authority solely from usage and customs or from judgments and decrees of courts recognizing, affirming and enforcing such usage and customs. (Black Law Dictionary, Revised Fourth Edition). Alabama was one of the few remaining states – in company with Texas, Utah, Montana, Iowa, South Carolina, Rhode Island, Kansas and Colorado – that still recognized common law marriage. Thirteen states never permitted common law marriage, and the remaining states no longer recognize it.
There have been many court cases addressing the subject and as each case was decided, the various courts have developed certain standards to be applied. In 1992, the case of Lofton v. Estate of Weaver, 611 So.2d 335, set the standard of review in Alabama and required clear and convincing proof thereof. Alabama then expanded its requirements to prove the following elements: (1) capacity; (2) present mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer v. Stringer, 689 So.2d 194, 195 (Ala. Civ. App. 1997), Gray v. Bush, 835 So.2d 192, 194 (Ala. Civ. App. 2001).
In addition to the proof required and the standard of review, Alabama also recognized the ore tenus rule wherein a trial court’s conclusion from all the evidence will not be set aside if it is supported by the evidence. The trial court always is in the best position to judge said evidence, along with seeing and hearing the witnesses. Where we run into certain issues on common law marriages is where there is conflicting evidence along with the ore tenus rule – some would argue there are no consistent rulings on these cases. To add to the confusion, there is no common law divorce, and leaving a common law marriage is not as easy as just separating. In addition to the above, each state may have many different requirements to establish a common law marriage.
The recent rulings from the U.S. Supreme Court legalizing same sex marriages nationwide have raised questions about the impact to common law marriages. The dilemma is what to do with it now. Some have argued to abolish it completely; others have suggested amending it but leaving it in place. As a compromise, Alabama has decided to abolish it going forward, beginning Jan. 1, 2017. What that means is that a common law union established prior to Jan. 1, 2017, would still be valid upon proper proof in Alabama. Any so-called common law union subsequent to Jan. 1, 2017, would be void or invalid.
As we move forward, the institution of marriage will continue to be reviewed. There are currently bills being presented in Alabama to abolish all marriage requirements to obtain a license. One option is to have civil contracts with signed affidavits. But this avenue also begs the question: would other states then reciprocally recognize these civil contracts as “marriages”?
We will just have to wait and see what develops next.