Common Law Marriage: Myths & Facts

Think you know what common law marriage means in Alabama?

There are many rumors and misconceptions about common law marriage, and your rights as a common law spouse in Alabama. It is a far more complex legal issue than most people understand. If you believe yourself to be married under common law status, you might want to consider what would happen were your partner to leave, or in the case of their death. Make sure you know your family law rights when it comes to common law marriage, and you can start by reading here for some of the basics:

1. Common misconceptions about common law marriage (these are not true!)

• If we have a child/children together we are common law married.
• We have lived together for years, and this makes us legally considered a common law married couple.
• I don’t have to get a court divorce to legally leave my partner if we are only common law married.

2. The three major facts about common law marriage in Alabama

• Fact: You are not considered to be in a common law marriage just because you have a child together.
• Fact: Living together for a specific period of time does not qualify your relationship as a common law marriage.
• Fact: True common law marriage is as legally binding as marriages that involve church or court ceremonies, and can only be dissolved by divorce, or the death of the spouse.

3. There are three major things that qualify a common law marriage as legally binding in Alabama

• To begin with, you and your spouse must have the “capacity to marry”. “Capacity to marry” means that both you and your spouse have the legal right to marry.
• Each person in the relationship must also have the intention to become married the other person.
• And finally both persons in the relationship must declare themselves to the community, their family, and their friends as a married couple. The couple actually must consider themselves to truly BE married, and demonstrate that consideration to others.
-Just because your partner declares an intention to one day formally marry you in a future ceremony this does not make your relationship status common law marriage. In fact, if this is the only evidence for intent , it may indicate to a judge that the third criteria for common law marriage has not been met because your partner does not consider himself to already be married to you.

4. What defines the legal right to marry (“capacity to marry”)?

• You must be an adult (at least 19 years of age).
• The state of Alabama has not yet recognized same sex marriages as legal. So, as of today, in order to be legally married either by legal ceremony or common law you must be the opposite sex of the person you wish to marry.
• Both people in the relationship must be of sound mind.
• Neither party can be legally married to another person outside of the relationship. Regardless of the situation of parentage, years spent living together, or declarations of intent, if one of the members of the relationship is still legally married to an outside person a common law marriage will not be recognized.
• If you do not have the “capacity to marry” before you live together, you can become legally married under common law later if divorce from previous spouses are obtained, or the death of previous spouses occurs.
Perhaps one of the most commonly asked questions about common law marriage is how to have a relationship recognized as such in order to protect your rights after a breakup with, or the death of a spouse. Because it is so difficult to determine intent, the only way to be sure is when a judge declares your status as common law marriage. Included in some of the factors a judge will consider are the following:

  • The couple lived together
  • The woman used the man’s last name
  • Contracts were signed together to make major purchases, such as a home or car
  • The couple filed joint tax returns
  • Had joint bank accounts
  • Referred to each other as husband and wife
  • Shared household duties and expenses
  • Had and raised children together
    Many rights in divorce as well as any rights to inherit insurance, pension, or Social Security Survivor’s benefits are determined by proof of a couple’s common law marriage status.