What Exactly is a Common Law Marriage?
Common law marriage is an agreement between a man and a woman to participate in a marital or spousal relationship, with the intent of being considered lawfully married. Historically, when people went through certain criteria (which varied from state to state) it was believed that they had entered into a common law marital relationship. Unfortunately, because of rule of thumb evidentiary issues, the courts today are less likely to recognize such a relationship, unless the parties have both lived in a recognized common law state when the relationship took place, and meet the requirements under the law of that state . Unlike a traditional marriage ceremony, which creates a husband and wife relationship, a common law marriage does nothing more than signal an intention of the parties to create a marital relationship. The parties commonly live together and behave like a married couple, but they do not undergo the formalities of marriage in that they do not obtain a marriage license issued by the state and do not have a marriage ceremony before a person authorized to unite them in marriage.
Alabama’s Approach to Recognizing Common Law Marriages
The legal position in Alabama on common law marriage is uncertain. In 1987, the Alabama Supreme Court abolished common law marriage however the Court’s decision did not apply retroactively. The Alabama legislature then enacted legislation that eliminated common law marriage in Alabama for marriages entered subsequent to January 1, 2017.
In Ex parte Morris, a trial court recommended that the Alabama Supreme Court abolish common law marriage in Alabama. Ex parte Morris, 669 So.2d 154 (Ala. 1995). The Alabama Supreme Court agreed and held common law marriage did not exist in Alabama. However, the prohibition against common law marriage was not applied retroactively. As a consequence, common law marriages entered prior to the Supreme Court’s decision remained valid.
The Alabama legislature responded to Morris by enacting the Common Law Marriage Abolition Act, Act No. 95-116, Ala. Acts 1995, §26-11A-1 (1995). "In the wake of that decision, however, the Alabama Legislature found it necessary to pass the Common Law Marriage Abolition Act." McDowell v. McDowell, 937 So.2d 63, 66 (Ala.Civ.App.2005).
The Act provides:
has no effect on any marriage if at any time before or on January 1, 2017, (1) A ceremonial marriage was entered into in Alabama or in another jurisdiction where the marriage was valid; (2) A marriage between two persons of the same sex was entered into in another jurisdiction where the marriage is valid; or (3) A marriage was entered into under the common law requirements set out by the Alabama Supreme Court in Ex parte Jackson, 220 Ala. 215, 124 So. 55 (1929), if at all times material to the purported marriage a civil law marriage license was not otherwise required or not otherwise provided for (i) by written law in Alabama or a written public policy of Alabama; (ii) in the jurisdiction in which the marriage was entered into, or (iii) by the internal law in that jurisdiction concerning the establishment of marriage.
The Act further provides:
marriage between the parties is expressly prohibited upon February 12, 1995, unless prior to that time : (1) There had been cohabitation, as defined in subsection (b); and (2) The parties had exchanged the current form of marriage license prescribed by the State of Alabama.
The Act is prospective in nature and applies to marriages entered into on or after January 1, 2017.
Act No. 95-116, Ala. Acts 1995, §26-11A-5 (July 31, 1995).
Until January 1, 2017, common law marriages were valid in Alabama if entered into before January 1, 2017, or were entered into in the very limited circumstances allowed by the Act.
Alabama’s statutory law on common law marriage is confusing and not well drafted.
Common Law Marriages Recognized in Alabama Since 2016
Common law marriages that were entered into prior to January 1, 2017 are still valid in Alabama and recognized as legally binding. As a general rule, marriages that occurred before the law’s enactment are considered grandfathered. There are approximately 20 states that currently recognize common law marriages. Although Alabama law no longer recognizes new common law marriages, there are many handling cases involving issues such as divorce, alimony, child support, and marital property distribution related to unions formed before 2017.
Advantages and Disadvantages of Common Law Marriage in Alabama
The advantages of common law marriage pertain largely to those who can prove they have met the requirements to establish this type of legal relationship in Alabama. These advantages include:
Freedom from the all the official steps that are required for traditional marriages, including the issuance of a license;
The avoidance of waiting periods associated with some types of marriages;
Considerably less expense than is typically necessary to plan a legal wedding ceremony; and
Tactically coercing the other spouse into acquiescing to a divorce to protect his or her property interest in the face of a challenge to the marriage or its validity.
Alternately, there are disadvantages and challenges to common law marriage in Alabama . These challenges include the following:
Immigration officials may not recognize the marriage as legitimate unless steps are taken to properly document the relationship;
Any of the parties can nullify the common law marriage simply by moving away to a state that does not recognize common law marriage;
One spouse can end the relationship without the other’s permission, even if the other spouse wishes to continue to be married;
Property interests can run into legal challenges;
The loss or reduction of legal benefits that are available to traditional married couples such as health insurance and inheritance rights; and
Reduced benefits from government programs or retirement that guarantee benefits to legal spouses.
Legal Protections for Your Relationship in Alabama
In Alabama, the law provides a number of ways to protect your relationship, both in the event you have not formally celebrated your wedding and in the event you have. If you and your partner are considering marriage but have not yet taken that step, we always advise couples to consider a cohabitation agreement. Just as a prenuptial agreement protects separate property in the event of divorce, a cohabitation agreement helps out intervening periods, and makes sure that even long-term couples recognize a legal partnership exists, even if it has not yet been celebrated. With a cohabitation agreement, you can legally protect everything from pets and property to shared debts and even children born prior to the marriage. Of course, it is also important to create a will which can address any number of issues related to your property, especially if you have bought property together with your partner and have not yet celebrated a ceremony. Unless there is a will, Alabama law shares property between spouses. There are numerous other ways in which you can legally protect your interests. We recommend interviewing several experienced family law attorneys to discuss drafting a comprehensive agreement that satisfies your needs in the event that you want to or need to legally separate or divorce.
Commonly Asked Questions Regarding Common Law Marriage in Alabama
What is common law marriage in Alabama?
Common law marriage is essentially a marriage that takes place between two people without a ceremonial marriage, which is a marriage license and formal ceremony. Under Alabama law, a couple is considered married when it is their mutual intent to marry.
Can we declare ourselves a common law couple after years of living together in Alabama?
Yes, you do not have to have filed any paperwork with the state or been married in a civil ceremony to be considered a common law couple. You are married under Alabama laws when you have proven to a court that you have the intent to marry and have lived together for a reasonable amount of time as husband and wife.
Are there any benefits of being "common law" other than being married?
Common law couples are granted the same legal benefits as any other married couple under Alabama laws . However, common law marriages often murky waters when it comes to estate planning, as the decedent’s assets are divided by the surviving spouse and beneficiaries according to how a will was written or how property was titled. In order to ensure that your partner gets everything you have, consider preemptively making a will that clearly states your intent for all of your property.
Will a common law marriage from another state be recognized in Alabama?
Yes. The only requirement for common law marriage in Alabama is that you have lived with your partner and intend to be married. So if you were married in another state through common law, you are recognized as married in Alabama.
Can our relationship be recognized as common law if one partner is married to someone else?
No. In order to be considered a common law couple, you both must be unmarried and have the intent to be married.