Alabama Recognizes Common Law Marriage
Alabama is one of the few states that still recognize a common law marriage. Where an Alabama common law marriage is alleged and proven, the couple is treated just like any other married couple and a divorce is necessary to end the marriage.
ORIGINS OF COMMON LAW MARRIAGE
Common law marriages have been around since the 1800’s. Their origin is often traced to the day in which easy access to courthouses and religious ministers were oftentimes limited. Because of this the law would allow the presumption that a couple who committed to a “marriage,” who lived as a married couple for a period of time, and held themselves out to their friends and neighbors as married were to be considered married in the eyes of the law without the necessity of going through he legal formalities of a marriage.
Most states do not currently recognize common law marriage. As of the last time we checked, only Alabama, Colorado, D.C., Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah recognized common law marriage. However, the modern trend is for states to terminate their recognition of common law marriage. For instance, Georgia recognized common law marriage up until 1997, at which time it was abolished. There are some states that have limited recognition of common law marriage, and some will recognize a common law marriage from another state, even though the state does not recognize such a marriage itself.
ALABAMA COMMON LAW MARRIAGE DEFINED
Essentially, a common law marriage is distinguished from a “civil marriage” in that an Alabama common law marriage does not require the couple to obtain a marriage license or to have a ceremony at which a public official or religious official officiates. An Alabama common law marriage requires proof of the following elements:
- The capacity to marry
- A present, mutual agreement to permanently enter a marriage relationship to the exclusion of all other relationships
- The public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.
Courts in Alabama closely scrutinize claims of an Alabama common law marriage, and require clear and convincing proof from the party claiming a common law marriage. See Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986). The issue of whether there is or is not an Alabama common law marriage is a question of fact generally decided by a judge in a divorce court.
Clear and convincing evidence means “evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.”
Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.
If an Alabama common law marriage is proven, the couple is treated for all purposes just like any other couple who were married in a civil marriage ceremony after obtaining a marriage license.
