Common Law Marriage in Alabama

I live in Alabama, and I think I'm in a common law marriage, what do I need to know?

There are two kinds of marriage in America: ceremonial marriage and common law marriage. Ceremonial marriage is what you get when you obtain a marriage license and you have a traditional wedding. Common law marriage is what you have when you live and act as if you’re a married couple, but you don’t have a marriage license or a wedding.

Most American states don’t recognize common law marriage, but for many years Alabama was in the minority of states that did. However, there’s been a major change in the legal landscape. Effective January 1, 2017, Alabama no longer allows new common law marriages, although it will continue to recognize common law marriages that began before January 1, 2017.

If you're involved in a common law marriage that began sometime before January 1, 2017, Alabama law will continue to treat you as a married person. But any purported marriage after that date has to meet regular Alabama marriage laws, including the requirements to get a marriage license and to have the marriage solemnized by a religious or civil officiant who has legal authority to perform weddings.

How did Alabama define common law marriage in the past?

Before January 1, 2017, spouses could prove the existence of a common law marriage by showing all of the following:

  • Both spouses had the “capacity” to marry. This means that both partners in the relationship were old enough to marry and they weren’t legally married to someone else. It also means that neither spouse was too intoxicated or mentally ill to consent to a marital relationship.
  • Both spouses 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 “held themselves out” to other people as being married to each 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) and have a sexual relationship.
  • The marital relationship began before January 1, 2017.

What is the legal effect of common law marriages that began before January 1, 2017?

Common law marriages that began before January 1, 2017 are legally valid and will be recognized by Alabama's court system. Couples in a common law marriage have most or all of the same legal rights and responsibilities as couples who have ceremonial marriages. This means that a genuine common law marriage only ends when the spouses die or divorce. If the relationship breaks down and can’t be saved, and the spouses want to end their marriage, they will have to get a divorce just like everyone else. The good news is that common law spouses still enjoy the full benefit of Alabama’s family court laws and rules, and they have all the same rights and responsibilities around the division of property, alimony, custody, and visitation as any other married couple.

Sometimes people think that common law marriages spontaneously happen because they’re cohabiting (living together) or because they have children together. But that isn’t the case. Having children together or cohabiting is only one dimension among many in proving that you have a common law marriage.

Similarly, if two people are just friends, they don’t have a common law marriage. Marriages are based on intimate romantic and sexual feelings that are absent from friendships. People who are just friends really can’t benefit from Alabama’s marriage and family laws.

What does Alabama law say about marriages that begin after January 1, 2017?

Alabama’s lawmakers eliminated common law marriage effective January 1, 2017. This means that no new common law marriages can be established after that date. To have a valid Alabama marriage after that date, the following rules apply:

  • Both parties must personally appear before a county court clerk to apply for a marriage license, which can be used in any county in Alabama and is good for 30 days.
  • Divorced people can’t obtain a new marriage license until the divorce has been final for at least 60 days, unless they are remarrying the previous spouse. People who are divorced must bring a copy of their final divorce orders with them when they apply for a new license.
  • People must be age 18 before they can marry without parental consent. Anyone who is 16-17 must have parental consent and post a $200 bond. No one under the age of 16 has the legal capacity to marry.
  • In addition to satisfying the age requirements, people who want to marry must also have full capacity to marry, meaning that they must be of “sound mind” and can’t currently be married to someone else.
  • Prospective spouses must prove their identity by providing the clerk of court with proper identification.
  • Ceremonial marriages have to be solemnized (made legal) by a religious or civil official (like a pastor or a judge) who has specific authority to perform marriages by the State of Alabama.

Common law marriages that already existed before January 1, 2017 will still be treated as valid marriages. This means that if you’re in a relationship that began before that date and it meets all the other legal requirements for the formation of a common law marriage, Alabama’s courts will treat your relationship as a marriage even if you never got a marriage license or had a wedding ceremony.

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 find resolution in Alabama’s tort or contract laws. Finally, if either partner in a relationship is victimized by domestic violence or abuse, a court can issue an restraining order to help protect the victim.

If you have questions about common law marriage in Alabama, please contact an experienced family law attorney for advice.

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