Alabama Retains the Concept of Common Law Marriage

According to the National Conference of State Legislatures only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) currently recognize common law marriage.  To prove a common law marriage in Alabama, a person must show three elements.  

  1. Capacity to form a common law marriage
  2. A present and mutual agreement to permanently enter into an exclusive marriage relationship
  3. Public recognition of the relationship as a marriage and the public assumption of marital duties along with cohabitation

Alabama courts closely scrutinize claims of common law marriage, and require that the person claiming a common law marriage prove it with “clear and convincing evidence.”  See Watson v. Bowden, 38 So.3d 93 (Ala.Civ.App.2009).  Clear and convincing evidence means evidence that leaves a person with a firm conviction as to the truth of the claim after having weighed all evidence pro and con.  Clear and convincing evidence is evidence which is more than a preponderance of the evidence required in a typical civil case and less than the proof beyond a reasonable doubt required in a criminal case.

Capacity to marry simply means that there is no legal bar to being married such as being under age are being married already. In addition a person entering a common law marriage must possess the mental capacity to enter a marriage in a mental impairment which is severe enough to prevent a person from  validly consenting to a marriage could result in lack of capacity.

There are no particular words or actions necessary to establish an agreement to be married. Courts look to the objective  actions of the persons involved in order to confirm the mutual agreement to be married. In other words, the courts will look to a person’s conduct in relation to the other  person as well as the couples conduct in relation to the public at large to determine whether there is a mutual agreement forming a common law marriage. Certainly where a person has committed in writing their intentions of being married, such evidence could be used as evidence in support of a mutual agreement.

Of the three elements noted above, public recognition this possibly the most important element to prove in order to establish a common law marriage in Alabama. Public recognition of a common law marriage may take a number of forms. Admitting to third persons that you are married and expressing to the general public that a marriage exists are both forms of public recognition. Signing leases together, buying property together, or signing any document as husband and wife tends to show public recognition. In addition, such things as filing taxes as a married couple, entering names as a married couple on school records, or the listing of a couple as a married couple in a public document all tend to show a common-law marriage. The requirement of cohabitation, which is part of the third element, is also essential to forming a common-law marriage. Cohabitation should not be confused with consummation. Consummation of the marriage is the act of engaging in sexual intercourse as a married couple. Cohabitation is simply the act of two persons living together as husband and wife to the degree that the general public is led to believe that they are in fact husband-and-wife.

A common-law marriage in Alabama is a marriage which is valid for all purposes, just like a ceremonial marriage. A common law marriage can only be terminated by divorce or the death of one or both of the parties. Where common-law marriage is ended by divorce, the case is handled just like the divorce of a couple who were married my ceremony.  This means that at the end of the common law marriage such issues as child custody, alimony, child support, property division, and fault are all issues to be decided in a divorce proceeding.

Issues of whether or not a common-law marriage exists are issues which are best addressed and examined by competent legal counsel. An Alabama family law attorney can examine all of the circumstances and make a reasoned judgment as to whether a common-law marriage exists. In addition an Alabama family law attorney can counsel their clients as to the best actions to take connection with situations for common-law marriage is at issue.