The position on Common law marriage in Alabama, like in many other states, has changed over the years.
Common-law marriage is a legal concept that applies to a couple with the appearance of marriage without going through the process of a formal wedding. To add, neither the state nor the religious registry records their union.
Several factors affect the existence of a common-law marriage, including first and foremost the state’s acknowledgment of the legitimacy of common law marriages. Unfortunately, the recognition of such marriages has been diminishing over recent years, with only a few states still recognizing them today.
After reading this article, you will become more familiar with the concept of common law marriage in general and the establishment and recognition of common law marriage in the state of Alabama more specifically.
Does Alabama Recognize Common Law Marriage?
The state of Alabama will only recognize common law marriages that entered into force before January 1, 2017, due to a change in the law. (AL Code § 30-1-20). After that date, the state will only recognize ceremonial marriages.
In other words, Alabama common law marriage rules necessitate that to become a married couple, partners must obtain a marriage license, have a religious or civil officiant perform the wedding, and sign a marriage contract.
The main reason that pushed states to change the laws related to common law marriage was the vague issues that surface when couples terminate their marriage. In addition, some people use common law marriage claims to gain a settlement advantage such as alimony or division of assets, and courts face many problems trying to untangle the relationship.
To add, couples can contract their common-law marriages in the following jurisdictions: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and the District of Columbia.
Does Alabama Recognize Common Law Marriages That Were Established in Other States?
The Full Faith and Credit Clause of the U.S. Constitution requires the states to accept a common law marriage that has been established in a state that recognizes common-law marriage. Thus, the common law marriage must comply with marriage laws in Alabama.
Consequently, other states will recognize the marriages of couples who entered into a common law marriage in Al before January 1, 2017. This usually happens when you and your common-law spouse decide to move to another state.
Establishing a Common Law Marriage in Alabama
The following are the Alabama common law marriage requirements for a valid marriage:
- Both parties must have the legal capacity to marry.
- Each must intend to be married to the other person.
- The couple should publicly hold themselves out to the community, friends, and family as being married.
- The common law marriage must have started before January 2017 (i.e., when the state stopped recognizing common-law marriages as valid).
- Contrary to what most people think, the law does not set a minimum amount of time for cohabitation for the common law marriage to be valid in the state of Alabama.
If two people are just friends and living together, the law doesn’t consider them as a couple married by common law. Marriages are based on intimate and romantic feelings that are absent in friendships; hence, a couple must be engaged sexually for the law to consider their union as a common-law marriage.
What Is the “Capacity to Marry”
In Alabama, several factors define a rightful capacity to marry:
- A person must be an adult (meaning they have reached their 19th birthday).
- A person must not be married to someone else.
- A person must be of sound mind.
If you don’t have the capacity to marry someone when you first start living with them, you can still marry them under common law in the future. This usually happens if you are younger than 19 when you start living with your partner or if one of you has still not finalized their divorce.
Common Law Divorce in Alabama
Both a common law marriage and a regular marriage end in the same way. A couple must go through a formal divorce process as if they are traditionally married.
Common law divorce also ends when one of the spouses passes away. A divorce law specific to common law marriages exists neither in Alabama nor in any other state for that matter.
Proof of Common Law Marriage in Alabama
In most cases, at some point in the relationship, the court will require at least one of the spouses to prove they are or were in a viable common-law marriage. So it can be while dealing with a divorce in which the other partner refuses to acknowledge that a common-law marriage existed or when dealing with the inheritance.
The other spouse will have to persuade the judge otherwise by using clear and convincing evidence. Admittedly, this is not quite as much proof as “beyond a reasonable doubt,” yet it is certainly more than “more likely than not.”
Proving marriage means meeting the requirements mentioned above. The main requirement for a valid common law marriage is for the couple to hold themselves out to be married.
There are several steps you can follow to do that, including:
- Opening a joint bank account
- Using the terms “husband” or “wife” when referring to each other in public
- Sharing the expenses and household duties
- Using the same last name
- Wearing wedding rings
- Filing joint tax returns.
A couple may also sign an affidavit of common law marriage. It is a notarized statement in which they both attest to their consent and agreement to having the law consider their relationship a common-law marriage.
The couple may also need to state some of the facts that would prove their marriage’s existence (for example, a lease in both names). In some cases, it would be beneficial to have the married couples family provide evidence of a common-law union.
Common-Law Marriage: Myths, Pros, and Cons
Like any other legal matter, common law marriage brings its misconceptions, advantages, and disadvantages. Let’s look at some below.
– Misconceptions
- Cohabitation alone is enough for a valid marriage. A couple must present themselves in public as husband and wife.
- Property bought during common law marriage is considered a marital asset. The law grants the right to divide marital assets to legally married couples only. If one of the spouses in a common law marriage is the sole owner of a shared residence, the spouse can sell it without the other spouse’s consent and without splitting the proceedings.
- Common-law parents have to each adopt any child they have together. Children that the parents acknowledge in a common law marriage are automatically considered legitimate without adoption. Both parents and children in a common-law marriage have the same rights and duties as those of a legal marriage.
- The surviving partner automatically inherits all assets in case his common-law spouse dies. One might claim an inheritance; however, the court will probably demand proof of a valid common law marriage. Therefore, couples in a common-law marriage should consider drafting a will.
– Advantages
- Spouses in a common-law marriage enjoy the full benefit of Alabama’s family court laws and rules. They have all the same rights and duties regarding property division, spousal support, and custody, just like any other married couple.
- In terms of Social Security Benefits, the spouses will have a stronger case for survivor benefits in a common-law marriage than if they were cohabitating.
- A valid common law marriage grants the spouse the right to make medical decisions on behalf of a disabled spouse, seek divorce and inheritance.
- The state of Alabama recognizes common-law marriages from other countries.
- If a job offers spousal coverage for health insurance, the employer will have to allow the enrollment of the spouse of a common-law marriage. Moreover, the law also considers children of common law marriages an employee’s dependents.
– Disadvantages
- Common-law marriages are confusing and often hard to prove.
- If it is not well and clearly established, common law marriage makes it hard for a spouse to collect benefits and incentives.
- Although spouses enter common-law marriage without going through an official process, they will need to go through an official divorce process to walk away from the relationship.
Conclusion
In conclusion, valid common-law marriages are recognized by some states but are available in only a handful of them. For example, in Alabama, there are several requirements that spouses should meet to establish a valid Alabama common law marriage.
Here are the ones to keep in mind:
- Both parties must have the legal capacity to marry.
- Each must intend to be married to the other person.
- The couple should publicly hold themselves out to the community, friends, and family as being married.
- The common law marriage must have started before January 2017 (i.e., when the state stopped recognizing common-law marriages as valid).
Despite having many advantages related to social security benefits, family court rights, and more, common-law marriages can be confusing and hard to prove, particularly when a couple has to solve issues in the courts.
If you ever consider entering into a common-law marriage or are already married by common law, make sure to have clear evidence to prove your status to avoid further complications.
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