RIP Alabama Common Law Marriage

When you ring in the new year December 31, bear in mind that you’re sounding the death knell for common law marriage in Alabama. You can read HB332, which makes the change. Before you assume that means the end of all conversations about common law marriage, though, know that HB332 does NOT take away the ability to assert a theory of common law marriage in Alabama divorces. Specifically, what it does is to establish that a common law marriage cannot begin after December 31.

The bill (which will become effective as law December 31 at midnight) specifically provides that an “otherwise valid common law marriage entered into before January 1, 2017, shall continue to be valid in this state.”

How does a common law marriage become effective? By a shared intent on the part of both the man and the woman to be husband and wife. Obviously, we can’t crawl up inside his head and hers and know whether and when each intended to be a spouse, so the courts look at the behavior of both spouses, trying to discern from what they said and did whether they considered themselves married.

As a practical matter, one can assume that the consequence of HB332 are that attempts to demonstrate the existence of common law marriage will now be limited to evidence of what each spouse said and did before January 1, 2017. And that means common law marriage will become harder and harder to prove. Eventually, more judges hearing divorce cases will have never given any thought to common law marriage; to them, claims of its existence will seem increasingly exotic and implausible.

Read that, it’s simply a matter of time before common law marriage really is dead in Alabama.

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