The State House

The Alabama State House

The longstanding concept of common-law marriage is about to be a thing of the past in Alabama, starting next year.

Gov. Robert Bentley on May 3 signed legislation that will effectively abolish common-law marriage as of Jan. 1, 2017. Those already involved in valid common-law marriages before the cutoff date will still be recognized by the state. The bill had been sponsored by Rep. Michael Jones, R-Andalusia,

Three requirements must be met for a common-law marriage to be valid in the state of Alabama. The couple must be of age and sound mind, the couple must show that they intend to eventually get formally married, and finally the couple must present themselves to the public as being husband and wife.

The legal idea of common-law marriage originated in Europe during the Middle Ages, because during the time it was the only means of marriage. It would not be until the 18th century when the British Parliament passed laws regarding the formal process of marriage, said Adam Maniscalco, a lawyer at Enzor and Maniscalco in Oxford.

As of 2016 only two states in the Southeast, Alabama and South Carolina, permit common-law marriage.

While most Southern states have never allowed common-law marriage, some, according to Maniscalco, abolished the concept for discriminatory purposes.

“Interestingly, it seems that in the 20th century, some Southern states abolished common law to prevent it from being used as a loophole in their bans on interracial marriage,” Maniscalco said.

While the concept of common-law marriage still exists at the moment, it is not very common and in some cases lawyers may only see a case or two in their career where it comes up, though never declared judicially.

“The only times that we have run across it in our practice, has been situations where it has been discussed,” Maniscalco said. “I’ve never actually seen it adjudicated in court yet, and I guess now I never will.”

Lawyer and former Circuit Court Judge Brenda Stedham notes the difficulty she had in presiding over the several cases of common-law marriage that were brought before court during her stint on the bench.

“You have to look at the facts and the circumstances, and watch the witnesses as they testify,” Stedham said. “You listen to the history of the relationship and make your best judgment to whether or not intent was proved. It is a real difficult and tricky thing.”

When such cases of common-law marriage happen, they tend to occur in probate proceedings where a person dies and the probate court is trying to figure out what should be done with the deceased’s property, Maniscalco said.

“You would have this other person with whom they have been living, who would come up and say, ‘Well judge, hold on, I was living with them as their spouse, we were common-law married and therefore I should be able to get a spouse’s share under the laws of intestacy,’” Maniscalco said.

Maniscalco believes the bill makes sense due to the antiquated nature of common-law marriage, and hopes it will encourage people to go through the legal process of getting married.

“Even though common-law marriage did exist, it is better for people to go through the formal processes so that we have assurance, and know exactly what is at stake here,” Maniscalco said. “In situations where common-law marriage would be a possibility, there is just this ambiguity that is not good because people don’t know where they stand with respect to each other.”

Efforts to reach Jones, the sponsor of the legislation, were unsuccessful.