HB331 By Representative Jones RFD Judiciary Rd 1 25-FEB-16

SYNOPSIS: Existing case law recognizes common law marriages in this state if the parties have capacity, the present intent to enter into a permanent marriage, and there is public recognition of the marriage.

This bill would provide two methods of proving the existence of a common law marriage.

This bill would codify the elements required by case law to establish the existence of a common law marriage-capacity and would specify that the parties could prove the existence of a common law marriage by proving the existence of each element by clear and convincing evidence.

This bill would also provide that the parties to a common law marriage could prove the marriage by filing a properly executed declaration of common law marriage in the probate office. This bill would establish the required contents of the declaration. This bill would provide that a properly executed declaration is prima facie evidence of the marriage of the parties.

The bill would create a rebuttable presumption that the parties entered into an agreement to be married if both parties have asserted that they are married in certain enumerated legal documents, such as income tax forms.

This bill would prohibit a person under the age of 19 years from entering into a common law marriage which differs from existing case law.

This bill would specify that a declaration of common law marriage can only be filed by residents of Alabama in the probate office of their county of residence, and both parties must be present to file the document and show proof of their age and identity.

A BILL TO BE ENTITLED AN ACT

Relating to common law marriage; to provide a procedure for proving a common law marriage; to provide for proof of a common law marriage by filing a declaration of common law marriage; to provide for the content of the declaration; to create a rebuttable presumption that the parties entered into an agreement to be married if both parties have asserted that they are married in certain enumerated legal documents, such as income tax forms; to prohibit a person under the age of 19 years from entering into a common law marriage which differs from existing case law; and to specify that a declaration of common law marriage can only be filed by residents of Alabama in the probate office of their county of residence, and both parties must be present to file the document and show proof of their age and identity.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. (a) The common law marriage between two individuals may be proved in either of the following ways:

(1) By evidence that a declaration of common law marriage has been signed and recorded as provided by this act.

(2) By clear and convincing evidence of the existence of all of the following elements of a common law marriage:

a. Capacity.

b. Present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships.

c. Public recognition of the relationship as a marriage, public assumption of marital duties, and cohabitation.

(b) An individual who has knowingly assumed the position in a judicial proceeding that he or she entered into a common law marriage with another person may not assume a position inconsistent with his or her prior position which prejudices the party to whom he or she asserted that he or she had entered into a common law marriage.

(c) In a proceeding in which a marriage is proved as provided by subsection (a)(2), it is rebuttably presumed that the parties entered into an agreement to be married if both parties signed any of the following:

(1) A federal or state income tax form stating that they are married.

(2) A health insurance document claiming they are married.

(3) Any other legal document under oath claiming they are married.

(d) A person under 19 years of age may not do either of the following:

(1) Be a party to a common law marriage.

(2) Execute a declaration of common law marriage pursuant to Section 2.

(e) A person may not be a party to a common law marriage or execute a declaration of common law marriage if the person is presently married to a person who is not the other party to the purported common law marriage or the purported declaration of common law marriage, as applicable.

Section 2. (a) A Declaration of Common Law Marriage must be signed on a form prescribed by the Alabama Administrative Office of Courts. Each party to the declaration shall provide the information required in the form.

(b) The declaration form shall contain all of the following information stated in substantially the same form:

(1) A heading entitled "Declaration and Registration of Common Law Marriage, ___________ County, Alabama."

(2) Spaces for each party's full name, including the name on each party's current birth certificate, current address, date of birth, place of birth, including city, county, and state.

(3) A space for indicating the type of document tendered by each party as proof of age and identity.

(4) A certification that: "The other party is not related to me as:

"a. An ancestor or descendant, by blood or adoption.

"b. A brother or sister, of the whole or half-blood or by adoption.

"c. A stepchild or stepparent, while the marriage creating the relationship exists.

"d. An aunt, uncle, nephew, or niece of the whole or half-blood."

(5) A certification that both parties are currently residents of the State of Alabama and a space for the parties to list their current address.

(6) A space for the date on or about which the parties are asserting is the date they entered into a common law marriage.

(7) A printed declaration and oath reading:

"I SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT _______________ (DATE) WE MET ALL OF THE FOLLOWING ELEMENTS OF A COMMON LAW MARRIAGE: a. CAPACITY; b. PRESENT, MUTUAL AGREEMENT TO PERMANENTLY ENTER THE MARRIAGE RELATIONSHIP TO THE EXCLUSION OF ALL OTHER RELATIONSHIPS; AND c. PUBLIC RECOGNITION OF THE RELATIONSHIP AS A MARRIAGE, PUBLIC ASSUMPTION OF MARITAL DUTIES, AND COHABITATION. THIS DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT."

(8) Spaces immediately below the printed declaration and oath for the parties' signatures.

(9) A certificate of a notary public, stated in substantially the same form as follows:

Personally appeared before me ____________________________________, who provided proof of his or her identity by presenting to me one of the documents listed below as indicated by the checked box:

[ ] Certified Birth Certificate;

[ ] ID or identification cards that comply with the REAL ID Act of 2005; or

[ ] National Government Passport.

And having first been duly sworn, did hereby swear or affirm that all of the statements contained in the above and foregoing Declaration of Common Law Marriage are true and correct.

Sworn to and subscribed before me on this the ___ day of ________, 20__.

_________________________

Notary Public

My Commission Expires on: ________________

Seal

Personally appeared before me ____________________________________, who provided proof of his or her identity by presenting to me one of the documents listed below as indicated by the checked box:

[ ] Certified Birth Certificate;

[ ] ID or identification cards that comply with the REAL ID Act of 2005; or

[ ] National Government Passport.

And having first been duly sworn, did hereby swear or affirm that all of the statements contained in the above and foregoing Declaration of Common Law Marriage are true and correct.

Sworn to and subscribed before me on this the ___ day of ________, 20__.

_________________________

Notary Public

My Commission Expires on: ________________

Seal

Section 3. (a) The notary public shall require proof of the identity and age of each party to the declaration of common law marriage to be established by one of the following documents:

(1) A certified birth certificate.

(2) A Star ID or identification card that complies with the REAL ID Act of 2005.

(3) A passport issued by a national government.

(b) Any person who knowingly provides false, fraudulent, or otherwise inaccurate proof of the person's identity or age under this section is guilty of a Class A misdemeanor.

Section 4. (a) Both parties seeking to record a declaration of common law marriage must personally appear together before the clerk in the office of the judge of probate and present to the clerk the executed declaration of common law marriage and the proof of verification of the age and identity of each party. Upon the receipt of the executed declaration of common law marriage and verification of the age and identity of the parties, the clerk in the office of the judge of probate in the county where both parties reside shall record the declaration of common law marriage, return to the parties the original of the declaration and the proof of the age and the identity of the parties, and send a copy of the declaration of common law marriage to the Office of Vital Statistics.

(b) A fee for the recording of the declaration of common law marriage shall be charged by the judge of probate in the county in which the license is recorded. The fees charged shall be the same amount as the fees that are charged for the issuance and recording of a marriage license in that county and shall be disbursed in the same manner.

(c) An executed declaration of common law marriage recorded as provided in this act is prima facie evidence of the marriage of the parties.

Section 5. This act shall become effective on January 1, 2017.

Family Law

Marriage

Common Law Marriage

Court, Probate