ON APRIL 27, 2022, THE SENATE ADOPTED AMENDMENTS # 1, 2, AND 3, AND REFERRED SENATE BILL 562 TO SUMMER STUDY.
AMENDMENT #1 rewrites this bill to enact the "Marital Contract at Common Law Recording Act."
Under this amendment:
(1) One man and one woman may file with the office of the county clerk in the county in which one of the parties to the marital contract resides a document entitled "Record of Marital Contract at Common Law." The document must state certain information, as set out in detail in this amendment, and which includes the following:
(A) That the man and woman have declared to each other acceptance of the other as wife and husband, respectively, and affirm the man's and the woman's mutual intention to enter into a marital contract at common law;
(B) That the record of marital contract at common law is not being executed prior to the dissolution of any marriage solemnized prior to the effective date of this bill as amended; and if the marriage is dissolved based on the party to a previous marriage having been absent five years and not known to be living, the name of the other party to such previous marriage; and
(C) That each party understands that making a false statement in the document is punishable as perjury;
(2) Both the husband and wife must be present at the time the record of the marital contract at common law is filed with the county clerk, and husband and wife must each provide the county clerk with a form of government-issued photo identification prior to the clerk filing the record of marital contract at common law;
(3) Failure to record a record of marital contract at common law will not be determinative of whether a marital contract at common law exists. The existence and validity of a marital contract at common law is not dependent upon the act of submitting notice or of the state receiving and recording the notice;
(4) The office of vital records must develop a record of marital contract at common law form consistent with the requirements of this amendment, post the form on its website for use by the general public, and distribute copies of the form to each county clerk's office in this state;
(5) A county clerk is authorized to record a record of marital contract at common law that complies with the requirements of this amendment, and must forward the record of marital contract at common law to the office of vital records to be filed and registered with such office;
(6) A party is prohibited from entering into a valid marital contract at common law before the dissolution of a prior marriage recognized under the law of this state. A record of marital contract at common law involving a person previously married in a lawful civil or common law marriage must not be received for recording in the office of vital records unless a record of the dissolution of the prior marriage or marital contract at common law has been recorded in the office of vital records;
(7) An interested person has the right to contest the recording of a record of marital contract at common law filed after the effective date of this bill as amended;
(8) There is a severability clause that states, among other things, that the invalidity, unconstitutionality, or unenforceability of a statute, benefit, right, or privilege pertaining to a marital contract will not impair the validity of the marital contract itself;
(9) For the purposes of any law in which proof of marriage is necessary in order for a husband or wife to register for, claim, or receive a benefit, right, or privilege accorded a spouse under a provision of state or federal law or rules, regulations, and executive orders made pursuant to state or federal law, the record of marital contract at common law recorded with the county clerk and on record with the office of vital records will be prima facie evidence of a common law marital contract. This amendment sets out in detail other provisions that will govern the reliance on a record of marital contract;
(10) The county clerk where the record of marital contract at common law is presented for recording must forward to the office of vital records, on or before the 10th day of each calendar month, all records of marital contract at common law presented to the clerk for recording, filing, and registering during the preceding calendar month. The office of vital records, upon request by one of the parties to the record of marital contract at common law, must provide to that party a certified copy of the record, indicating the date the record was recorded, filed, and registered. The office of vital records may charge a fee sufficient to cover the administrative costs related to records of marital contracts at common law submitted for recording;
(11) Records of marital contract will be subject to the same privilege tax and fees as marriage licenses; and
(12) In cases involving the definition of common law marriage, the courts' jurisdiction will be limited to those principles of common law consistent with Article XI, Section 18 of the Tennessee Constitution (which provides that the "the historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state."
AMENDMENT #2 adds a requirement that parties to a record of marital contract at common law must have reached the age of majority, clarifies that such contracts will be filed with the county clerk rather than the clerk of court, and sets the clerk's fee for recording of a marital contract at common law at $10.00 (which is the same amount as clerks are authorized to charge for issuance of a marriage license under present law).
AMENDMENT #3 replaces authorization for a man and a woman to file with the office of the county clerk in the county in which one of the parties to the marital contract resides a document entitled "Record of Marital Contract at Common Law". Under this amendment, if a man and a woman have both attained the age of majority and have made a marital contract at common law, then the man and the woman will be required to file with the office of the county clerk in the county in which one of the parties to the marital contract resides, a document entitled "Record of Marital Contract at Common Law."

Statutes affected:
Current Version: 8-6-109(b), 8-6-109, 16-10-101, 16-11-102