Many people may have never heard of common-law marriage. That could be because Alabama is one of only 10 states, plus the District of Columbia, that recognizes common-law marriage. Most people go to the courthouse and pay for a marriage license. Then, they are married by a pastor or justice of the peace. So what is a common-law marriage?
Common-law marriage is defined as a man and woman who present themselves to friends, family and the public as “being married” but never go through the formal process of obtaining a marriage license and having a wedding.
But, there are other requirements for couples presenting themselves as married without a marriage license. It isn’t just one thing; it’s a combination of things.
Cohabitation, or living together, greatly helps define a common-law marriage. But, cohabitation is also the biggest misconception surrounding common-law marriage. There is no set time period the couple lives together for them to be considered common law marriage. It can be one day of living together, or it could be 20 years. The misconception is that if you live together for three years, five years or seven years, then you are considered to have a common-law marriage. Common-law marriage has to have more than just cohabitation.
Other factors vary, depending on the state, but could include joint bank accounts or credit cards, taking the same last name and even referring to each other as husband and wife.
So, if there’s common-law marriage, does that mean there’s common-law divorce? It depends on whether or not a judge finds that the marriage is common law. Probate Judge Chris Green says that he has had to make a judgment on common-law marriage.
“I have made decisions on common-law marriage before,” said Green. “Most commonly it comes up in estates. Say there’s a common-law wife. She wants the common-law husband’s estate, but there may be children who disagree. That’s when I’d have to make the decision if the couple met the requirements of a common-law marriage.”
Common law marriage is on the way out in Alabama. Civil Appeals Judge Terri Willingham Thomas issued a dissenting opinion in a divorce case last Friday saying the practice of recognizing weddings without a marriage license or ceremony is outdated. She says common law marriage is legally cumbersome and causes confusion and fights in courts.
“As time goes by, there will be less common-law marriages to deal with,” explained Green.
It appears that the Alabama House of Representatives and the Alabama Senate are in agreement. House Bill #332 eliminates common-law marriage. If you are common-law married after Jan. 1, 2017, the state of Alabama will not recognize the union. However, if you are engaged in a common-law marriage before Jan. 1, 2017, the state will honor the marriage.
This summer, the Alabama Senate passed Bill #143, sponsored by Sen. Greg Albritton (R-Baldwin County). The bill did not pass the House, but it will likely come up again next year. The bill says that couples who don’t want a marriage license, but still plan to present themselves as husband and wife, will enter into a legal agreement.
This bill has not been passed yet, but Judge Green thinks it will definitely come back into discussion. There are no records in the state of Alabama that give us an idea how many couples are considered to be in a common-law marriage. However, in Blount County, Green said that he has come across just three common-law marriages in his four years in office.