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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 37820
Experience:  Retired (mostly)
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What exactly constitutes "common law" marriage within the state

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What exactly constitutes "common law" marriage within the state of Alabama? And does my father-in-law's girlfriend stand a chance?

My father-in-law passed away several years ago. At that time, he had been living in the same home as his girlfriend. Both of them were in their 60/70's. While he lived there for I'll say seven or eight years, to my knowledge, they did not combine bank accounts, file tax info together, or combine any other business even though he may have given her money at some time to reimburse her for times she paid his way. It looks like she lived upstairs and he lived downstairs in the same house.

A will existed leaving the estate to my husband. The only thing of monentary value at the time of his death was a fairly new truck. We put the will into probation, paid off the truck, put the title into the name of the estate. If there were any other bills that we knew about, we took care of them including funeral expenses. All of this said, when we went to his friend's house after we found that my husband's Dad died, we were met at the door by the "friend" and her children telling my husband that the truck was hers. She was his common law wife, and he promised her. The coroner took all in his Dad's pocket to the funeral home including the truck keys. We were threatened with being arrested for trespassing should we come on her property.

All of this said, 3 years later, I believe that the will is still in probate, the title is still in the name of the estate, and it is still sitting in her driveway. I received a call today from her son with the threat of either signing over the truck, or we will be charged $35 per day for the time the truck has been sitting on her property.

Personally, I feel that there is a special place in hell for such people, but that isn't my call. I also feel from a fairness standpoint (and to some extent a legal one), that she doesn't have a leg to stand on. BTW, to my knowledge - at least from my husband's Dad's perspective, he has NEVER represented her to us or any of his side of the family as his wife. He still signed birthday cards in his and his deceased wife's name.

Thanks for the info.
"A valid common law marriage exists in AL when there is capacity to enter into a marriage, present agreement or consent to be husband and wife, public recognition of the existence of the marriage, and consummation." Waller v. Waller, 567 So.2d 869 (Ala.Civ.App. 1990). See also, Hudson v. Hudson, 404 So.2d 82 (Ala.Civ.App. 1981).

There appears to be nothing in your stated facts demonstrating that a common law marriage exists between the girlfriend and your late father-in-law.

You would have to complete the probate, which may not be worth the value of the truck. However, if you already have title in your name, then you can have a repo company hotwire the truck and remove it from the property.

If you do not have title to the vehicle, then you may want to consider offering the girlfriend to agree to sell the truck and split the proceeds 50/50, because something is better than nothing.

It really boils down to the value of the truck, because perfecting title in your name may be not worth the cost, and if the girlfriend can't perfect title, either, then she's stuck with a vehicle that she cannot title in her name. Better to be stuck on her property than on yours.

Hope this helps.
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