Dating the marriage

Tying the knot, Alabama style

Reader Adam Jenkins ran into a snag in trying to figure out his family’s history.

Part of the story was the common tale of divorce and remarriage. Adam reported that his great grandmother Lucy divorced his great grandfather Homer on September 22, 1942, in Houston County, Alabama. “Lucy then married Earnest less than a week later, on September 28, 1942, in nearby Coffee County, Alabama. They subsequently had several children and remained married until she died in 1967.”

That’s the easy part. Then, Adam said:

The divorce decree says “neither party … shall again marry except to each other until sixty days after the rendition of this decree”. But the next paragraph says that Lucy “is hereby permitted to again contract marriage upon the payment of the cost of this suit.” Can you help me to understand what all of this means? Was Lucy’s marriage to Earnest improper because it occurred less than 60 days following her divorce from Homer? Or was it allowable presuming she paid the cost of the divorce suit prior to her marriage to Earnest? If the marriage was not legally initiated, would it have still been valid as a common law marriage after some time? I’d appreciate any light you can help to shed on this confusing situation!

Great question. Let’s work it through. And, of course, the answer lies in Alabama law. So let’s take a look at the statute today:1

Ala.divorce

Now the first thing you may be wondering is, why are we looking at the statute today if we’re talking about a divorce and remarriage back in the 1940s? That’s why the red arrow is there in the image. See what it’s pointing at? That’s a reference to the last amendment to this particular statute. This law hasn’t been changed since 1940. So it’s the same law today as it was when Lucy was divorced from Homer.

And the law clearly says that “the court shall order that neither party shall again marry, except to each other, until 60 days after the judgment is entered.” The “shall order” language is important, because it means the judge doesn’t have the authority to do anything else. If it had said “may order,” then the judge would have had the right to impose some shorter time.

What the judge was doing, in adding the language about Lucy’s remarriage, was making sure that she, as the complaining party in the divorce, paid the court costs. And, then as now, Alabama law allowed the judge to say that either party in the case wasn’t allowed to remarry at all.2 So that part of the decree simply made it clear that Lucy could remarry.

You see where this is leading, right? The answer is pretty much inescapable: Lucy’s marriage to Earnest wasn’t legal at the time they were married, whether she’d paid the court costs or not.

If she did pay the court costs right away, she may well have thought that she was allowed to remarry right away — and it’d be interesting to see if the court costs were paid before her marriage to Earnest. But she really should have waited under Alabama law.

So what does that mean for the remarriage? That’s where we have to look at whether the marriage was void or voidable, and we start with definitions.

An act is void when it is “null; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended.”3 And an act is voidable when it “may be avoided, or declared void; not absolutely void, or void in itself.”4 And, Black’s Law Dictionary explains:

There is this difference between the two words “void” and “voidable:” void means that an instrument or transaction is so nugatory and ineffectual that nothing can cure it; voidable, when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it.5

When applied to a marriage, one that’s void is one “that was for some reason never valid from the start and cannot be made valid.”6 That’s because some marriages are so inherently unacceptable to the law that they remain illegal no matter what happens afterwards. An incestuous marriage would be an example of a void marriage.

One that’s voidable is a “marriage that is valid until declared invalid.”7 These are the marriages that — though unlawful at the time — really don’t fall into the “can’t-ever-be-legal” category. Take, for example, the marriage of a couple under the legal age to marry. If the kids, or their parents, go into court while they’re still underage, the marriage can be annulled. But if they stay married, inevitably at some point they will be of age, and their choice to stay together as a married couple will be considered to ratify the marriage.

So now you’re sitting there waiting for me to say that Alabama considers this a voidable marriage, right? After all, at some point, those 60 days would pass and the marriage should be perfectly legal, right?

Nope. Alabama law treats a marriage contracted in Alabama during those 60 days as void.8 The ceremonial marriage of Lucy and Earnest in September 1942 never had any legal effect.

But hold on. All is not lost. Their marriage did become legal and it’s through exactly the process Adam thought might have applied: the concept called common law marriage. Recognized in nine states and the District of Columbia, a common law marriage is “a marriage that is considered valid by both partners… In effect, the act of the couple representing themselves to others as being married acts as the evidence that they are married. In jurisdictions recognizing common-law marriages, such a marriage is not legally distinct from a traditional ceremonial marriage … in terms of the couple’s rights and obligations to one another.”9

Alabama is one of those nine states today,10 and its Supreme Court had to deal with exactly the issue underlying Lucy and Earnest’s marriage in a case decided only a few years after that marriage. In that 1945 case, Smith v. Smith,11 a husband tried to get his marriage annulled because, he said, he and his wife married within 60 days of her divorce from her first husband.

The Court agreed with him that the formal ceremonial marriage itself was void — but said he still wasn’t entitled to an annulment because the marriage had become legal as a common law marriage after the 60 days expired. It noted that, under Alabama law, all that was necessary for a valid common law marriage was that “there should be a mutual consent between the parties to be husband and wife, followed by cohabitation and living together as man and wife.” And in that particular case:

At the time of the marriage in question, it is admitted that a legal impediment existed, to wit, that sixty days had not elapsed since the granting of the divorce in favor of the appellant against her former husband…. However, after the running of the sixty days’ restriction in the … divorce decree, the impediment for a lawful marriage was then removed, and under the law the appellant was permitted to again contract marriage, which she could do either ceremonially or through the medium of a common law union. The impediment having been removed, as was shown in this case, the acts and doings of the parties … after the removal of the impediment, clearly evidence the fact that these two persons considered themselves as husband and wife.12

So too with Lucy and Earnest. Their September 28, 1942, marriage was void — illegal — and they were in fact not married to each other… until the first time they held themselves out to other people and acted as husband and wife towards each other after the 60-day period had expired.

And Adam and his family can now celebrate two wedding anniversaries if they want to… the anniversary of the ceremonial marriage in September … or the anniversary of the legal common law marriage in December.


SOURCES

  1. Alabama Code §30-2-10; Alabama State Legislature (http://alisondb.legislature.state.al.us/acas/codeofalabama/1975/coatoc.htm : accessed 2 Dec 2013).
  2. Alabama Code §30-2-8; Alabama State Legislature (http://alisondb.legislature.state.al.us/acas/codeofalabama/1975/coatoc.htm : accessed 2 Dec 2013).
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1226, “void.”
  4. Ibid., 1227, “voidable.”
  5. Ibid., 1226, “void.”
  6. Legal Information Institute, Wex Dictionary (http://www.law.cornell.edu/wex/ : accessed 2 Dec 2013), “void marriage.”
  7. Ibid., “voidable marriage.”
  8. See e.g. “GN 00305.165 Summaries of State Laws on Divorce and Remarriage,” Social Security Administration, Program Operations Manual System (https://secure.ssa.gov/apps10/ : accessed 2 Dec 2013).
  9. Wikipedia (http://www.wikipedia.com), “Common-law marriage,” rev. 15 Nov 2013.
  10. See generally Legal Services Alabama, “Common Law Marriage in Alabama,” AlabamaLegalHelp.org (http://www.alabamalegalhelp.org/ : accessed 2 Dec 2013).
  11. Smith v. Smith, 247 Ala. 213 (1945).
  12. Ibid., 247 Ala. at 217-218.
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6 Responses to Dating the marriage

  1. Greg Lovelace says:

    What an appropriate post for me! I am currently researching a couple who apparently had a common-law marriage in Alabama in 1867. After the husband’s death, his widow made two separate applications for a Union Civil War pension. Both appear to have been denied. There are three witness affidavits included in the pension applications, and each one has the notation “cohabitation” written in the margin. Did the Pension Board recognize common-law marriages as legal in 1867? BTW… in both pension applications, the widow claims to have been married in Milton, Florida. I have been unable to uncover any evidence of the marriage.

    • Judy G. Russell says:

      Greg, common-law marriages were (pardon the pun) common in that time period. And yes they certainly were recognized by the Pension Board; although the proofs were harder, such marriages were legal. However, if you’re dealing with free people of color, you may be seeing that word “cohabitation” for other reasons — there were cohabitation registers that were supposed to be made of the freed people who had been living together as husband and wife.

      • Greg Lovelace says:

        Hi, Judy, and thanks for the response. This is an interesting case. The soldier was married prior to his conscription into the Confederate Army in North Carolina. He was captured and volunteered for the Union Army (a “galvanized yankee”). He was discharged in Kansas, and his first wife remarried in North Carolina soon after that (details aren’t known, except that she and her second husband had many children). He then took up with the woman in Alabama who claimed to be his widow in her pension applications. Before his death, he applied several times for a pension, citing two separate illnesses, but never received one. Maybe the denial of her pension applications was due to the fact that he was never able to prove that his illnesses (rheumatism and pleurisy) were service-related?

        • Judy G. Russell says:

          That’s a fascinating case, Greg, and the reasons for her denial could have been either the problems in proving the marriage or the problems in proving that the disability was service-related — or both.

  2. Linda Johnson says:

    Thanks for a very interesting post. It makes me wonder whether the couple could have married legally during the 60-day waiting period if they had chosen to travel to a different state to do so. Would the Alabama waiting period apply in that situation or not?

    • Judy G. Russell says:

      Good question, and the answer is no, it wouldn’t have applied. A state can only restrict what’s done within its borders. Outside its borders, the question of legality would be dictated by the laws of the other state. And when the people came back to Alabama, their legal marriage from the other state would have been recognized.

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