Common Law Marriage in Alabama

Learn about common law marriage in Alabama.

By , Retired Judge
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What Is Common Law Marriage?

Common law marriage is a legal concept that applies to couples who are in a relationship that has the appearance of a marriage, but hasn't been formally sanctioned by the state (such as by the issuance of a marriage certificate). A valid common law marriage typically confers both the benefits and obligations of a formal marriage.

Whether a common law marriage exists depends on a number of factors. First and foremost, a state has to acknowledge the legitimacy of common law marriages. It if does, then the validity of the marriage will hinge in large part on how the couple view the relationship, and how they act on that perception.

Does Alabama Recognize Common Law Marriage?

It does, but only for relationships entered into prior to January 1, 2017. Alabama has outlawed common law marriage after that date. (AL Code § 30-1-20.) In order to prove a common law marriage in Alabama, a couple has to meet the following requirements:

  • Both spouses had the "capacity" to marry at the time of the marriage. This means that both partners in the relationship were old enough to marry under Alabama law, weren't legally married to someone else, and were of sound mind.
  • Both spouses had to agree to be married to each other. This means each has to take an affirmative act or affirmatively say something that demonstrates an intent to marry the other person.
  • Both spouses must have "held themselves out" to other people as being married to one other, which means that they behaved in a way that caused family, friends, and the community to conclude that both partners were married to one another. The spouses also have to live together (although there's no minimum time frame).

Sometimes people think that common law marriages spontaneously happen because a couple has been cohabiting (living together) or because they have children together. But having children or cohabiting alone aren't enough to prove the existence of a common law marriage.

What Is the Legal Effect of Common Law Marriage?

Couples in a valid common law marriage have most or all of the same legal rights and responsibilities as couples who have traditional ceremonial marriages. This means that a genuine common law marriage only ends when a spouse dies or the couple divorce.

If a marriage breaks down and can't be saved, and the spouses want to end it, under the law that applies to Alabama common law marriage, divorce is the only viable option. The good news is that common law spouses enjoy the full benefit of Alabama's family court laws and rules, and they have all the same rights and responsibilities relating to the division of property, alimony, child support, and custody as any other married couple.

If a spouse passes away without a will, the state's inheritance laws apply to the surviving spouse in a common law marriage.

People who are in serious relationships that fall short of being common marriages aren't without legal recourse. If they have children together, both parents have the right to ask a court to make decisions about the child's paternity, custody, visitation, health insurance, and child support. If two partners have other sorts of legal problems, they may be able to resolve them through Alabama's tort or contract laws. Finally, if either partner in a relationship is a victim of domestic violence or abuse, a court can issue a restraining order to help protect that partner.

Proof of Common Law Marriage in Alabama

Whether it involves divorce or inheritance, there will likely come a time when you will have to prove that you were in a viable common law marriage. Let's say, for example, your relationship is failing and you want a divorce, but your partner refuses to acknowledge that a common law marriage existed. You'll have to persuade a judge otherwise. And, you'll have to do it by "clear and convincing" evidence. (Watson v. Bowden, 38 So. 3d 93 (Ala. Civ. App. 2009).) This means that the evidence has to be highly probable, not just marginally more believable than not.

The same applies to situations where a spouse dies without a will. You'll have to prove a common law marriage existed for inheritance purposes and other potential survivor benefits, such as money payable under your spouse's pension.

Proving the marriage means meeting the requirements listed in the second section of this article. The third element—holding yourselves out to be married—is highly fact-based. So there are steps you can take to facilitate meeting your burden of proof. Some of these are:

  • opening up a joint bank account
  • using the term "spouse" when referring to each other in public
  • wearing wedding rings
  • using the same last name
  • sharing expenses and household duties, and
  • filing joint tax returns.

You can also sign an affidavit of common law marriage. This is a notarized statement in which you attest to your agreement and consent to having your relationship considered a common law marriage. You'll also state some of the facts that would serve to prove the marriage's existence, such as noted in the list above. You might also include copies of documents to back up your claim, such as joint bank accounts, a lease in both names, or a deed to property you jointly own.

Something to Note About Alabama's Current Marriage Laws

You might be interested in learning that as of August 29, 2019, Alabama no longer requires a marriage license, and a ceremony is optional. A couple can complete an Alabama Marriage Certificate and submit an affidavit that states each of them:

  • is at least 18 years of age
  • is at least 16 and under 18 years of age and has the consent of a parent or guardian
  • is legally competent to enter into the marriage
  • isn't related by blood or adoption to the other applicant to such degree as would violate Alabama's incest laws, and
  • is entering into the marriage voluntarily, of their own free will, and not under duress or undue influence. (AL Code § 30-1-9.1.)

The certificate must be returned to the probate court for recording within 30 days of when it was signed. (If the spouses sign on different dates, the latter of the two dates starts the countdown.)

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