Alabama Abolishes Common Law Marriage

By: Lindsey Catlett[1]

January first of this year marked an important turning point in Alabama law: the abolition of common law marriage.[2]  While common law marriages entered into before January 2017 are valid, no new common law marriages will be recognized in the state.[3]  This shift follows the Alabama state legislature’s adoption of Act 2016-306.  The Act was introduced by Representative Mike Jones during the 2016 Regular Session[4] and signed in to law by Governor Bentley on May 10, 2016.[5]

Act 2016-306, while following the current national trend of abolishing common law marriage,[6] is a stark contrast to the early views of this doctrine in U.S. and Alabama history.  In 1877, the United States Supreme Court addressed the existence of common law marriages in various states. In Meister v. Moore[7], the Court held that the institution of common law marriage was assumed to exist in a state unless specifically revoked or abolished.[8]

The Alabama Supreme Court acknowledged the existence of common law marriages within the state as early as 1869.[9]  Campbell’s Administrator and Heirs v. Gullatt was decided by the Alabama Supreme Court during January of 1869.[10]  The action was commenced by Sarah A. Gullatt to receive dower in the lands of James Campbell, deceased.[11]  Campbell’s children and the administrator of his estate denied that Campbell and Gullatt were ever lawfully married and thus argued that Gullatt was not entitled to any dower in Campbell’s lands.[12]  In its opinion, the Alabama Supreme Court acknowledged the existence of common law marriage by stating:

It is a universal rule that a regulation or statute concerning marriage, does not affect the validity of the marriage, unless it contains an express clause of nullity. In other words, a marriage good at the common law, is good, although not solemnized according to the statute on the subject, unless the statute expressly declares that non-compliance with its provisions shall avoid the marriage.[13]

This rule has been cited many times throughout the subsequent one-hundred and fifty years of Alabama case law.[14]  One of the most important Alabama cases related to the institution of common law marriage is the 1971 case, Beck v. Beck.[15]  This case was brought by the children of deceased Dr. Beck, seeking a declaratory judgment that Mrs. Alton Beck was not Dr. Beck’s common law wife at the time of his death.[16]  In holding that a common law marriage existed, the Supreme Court of Alabama stated considerations for finding the existence of common law marriages within the state.  The three factors articulated by the court were, “a present agreement, a mutual understanding to presently enter into the marriage relationship, [and the relationship must be] permanent and exclusive of all others.”[17]  Subsequent cases have set forth additional requirements such as present legal capacity,[18] and public recognition of the marriage.[19]  The commonly accepted elements for a common law marriage in Alabama are: 1) mental capacity; 2) intent to be married; and, 3) public acknowledgement of the marriage.[20]

Legal issues related to the existence of a common law marriage may arise in a variety of practice areas including immigration, tax, social security benefits,[21] veteran’s benefits,[22] child custody, estate planning, family law, probate, and property transactions.[23]  Thus, the enactment of Act 2016-306 will affect attorneys practicing in a variety of fields.  The marital or spousal privilege that would have been available to common-law spouses in trials[24] will be unavailable unless their common law marriage was entered into prior to 2017, or they obtain a marriage license.  Workers compensation benefits that are available to the spouse of a deceased employee[25] will not be available to those whose common law marriage is not already recognized.  Personal injury attorneys will also be affected by Act 2016-306, as consortium claims have historically been supported by a common law marriage in Alabama.[26]

Despite the extensive effects on many areas of Alabama case law, Act 2016-306 is substantiated by practical considerations as well as modern legal trends.[27]  The practical dilemmas arise when a relationship between a couple ends and one partner claims it was a common law marriage, but the other partner denies the existence of a common law marriage.  Courts focus on nuances when making these determinations and these cases often become “he said/she said”[28] arguments. These issues are especially difficult in probate cases where one of the partners is deceased and thus unable to speak to his or her intent to be married (the second element of common law marriage in Alabama).[29]  Many states today, recognizing the potential for great inconsistency and abuse in common law marriage issues, have opted instead to abolish common law marriages.[30]  Alabama was one of only ten states that broadly recognized common law marriages before the enactment of Act 2016-306.[31]

Alabama’s view of common law marriage evolved greatly from the Gullatt ruling in January, 1869, to the enactment of Act 2016-306 in January of 2017.  This new legislation will affect attorneys practicing in a variety of fields from personal injury to tax and estate planning. The Cumberland Law Review is committed to keeping attorneys informed of innovative developments in Alabama’s legal landscape.  Please check back for future articles providing up-to-date information for those in the legal community.


[1] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Ouachita Baptist University.

[2] 2016 Ala. Laws Act 2016-306 (H.B. 332).

[3] Id.

[4] Id.

[5] 2016 Al. H.B. 332 (NS) Bill Tracking.

[6] See Hon. John B. Crawley, Is the Honeymoon Over for Common-Law Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 Cumb. L. Rev. 399, 399-400 (1998-1999) (noting that Alabama is one of “a dwindling minority of jurisdictions that recognize common-law marriage”).

[7] Meister v. Moore, 96 U.S. 76 (1877).

[8] Id. at 78-79.

[9] See Campbell’s Adm’r v. Gullatt, 43 Ala. 57 (1869).

[10] Id.

[11] Id.

[12] Id. at 57-8.

[13] Id. at 64.

[14] See Rickard v. Trousdale, 508 So. 2d 260 (Ala. 1987); Piel v. Brown, 361 So. 2d 90 (Ala. 1978); Carter v. Gaines, 87 So. 109 (Ala. 1920).

[15] Beck v. Beck, 246 So. 2d 420 (Ala. 1971).

[16] Id. at 421-22.

[17] Id. at 425. See also Turner v Turner, 37 So. 2d 186 (Ala. 1948); Whitworth v. Whitworth, 54 So. 2d 575 (Ala. 1951); Jenkins v. Avery, 59 So. 2d 671 (Ala. 1952); Goodman v. McMillan, 61 So. 2d 55 (Ala. 1952).

[18] See Adams v. Boan, 559 So. 2d 1084 (Ala. 1990).

[19] See Boswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986).

[20] Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law §1:4 (2016).

[21] See U.S. v. Rainwaters, No. 09-0146-WS, 2010 WL 2348622 (S.D. Ala. 2010), aff’d, 438 Fed. Appx. 778 (11th Cir. 2011).

[22] See Burden v. Shinseki, 25 Vet. App. 178 (2012).

[23] Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law §1:4 (2016).

[24] Ally Windsor Howell, Trial Handbook for Alabama Lawyers §26:4 (3d ed. 2016).

[25] Terry A. Moore, Alabama Workers’ Compensation §18:7 (2d ed. 2016).

[26] Ally Windsor Howell, Alabama Personal Injury & Torts §14:19 (2016).

[27] See Hon. John B. Crawley, Is the Honeymoon Over for Common-Law Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 Cumb. L. Rev. 399, 399-400 (1998-1999) (noting that Alabama is one of “a dwindling minority of jurisdictions that recognize common-law marriage”); see also Leada Gore, Common Law Marriage in Alabama Ending Jan. 1, 2017, AL.com (Dec. 28, 2016, 7:31 AM), http://www.al.com/news/index.ssf/2016/12/common_law_marriage_in_alabama_1.html.

[28] Leada Gore, Common Law Marriage in Alabama Ending Jan. 1, 2017, AL.com (Dec. 28, 2016, 7:31 AM), http://www.al.com/news/index.ssf/2016/12/common_law_marriage_in_alabama_1.html (quoting Bari Z. Weinberger, Common Misunderstandings About Common Law Marriage, New Jersey Law Journal (Nov. 28, 2016), http://www.njlawjournal.com/id=1202774595228/Common-Misunderstandings-About-Common-Law-Marriage?slreturn=20161127190522.

[29] See Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law §1:4 (2016).

[30] See Hon. John B. Crawley, Is the Honeymoon Over for Common-Law Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 Cumb. L. Rev. 399, 399-400 (1998-1999) (noting that Alabama is one of “a dwindling minority of jurisdictions that recognize common-law marriage”); see also Leada Gore, Common Law Marriage in Alabama Ending Jan. 1, 2017, AL.com (Dec. 28, 2016, 7:31 AM), http://www.al.com/news/index.ssf/2016/12/common_law_marriage_in_alabama_1.html (noting that Alabama Act 2016-306 leaves only Colorado, Kansas, Iowa, Montana, Rhode Island, South Carolina, Texas, Utah, and Washington D.C. as recognizing common law marriages).

[31] Leada Gore, Common Law Marriage in Alabama Ending Jan. 1, 2017, AL.com (Dec. 28, 2016, 7:31 AM), http://www.al.com/news/index.ssf/2016/12/common_law_marriage_in_alabama_1.html (noting that Alabama Act 2016-306 leaves only Colorado, Kansas, Iowa, Montana, Rhode Island, South Carolina, Texas, Utah, and Washington D.C. as recognizing common law marriages).

 

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