Gavin Howe
Alabama no longer recognizes common-law marriages that began after January 1, 2017. However, common-law marriages that began before this date are still valid and are treated as regular marriages. To prove a common-law marriage in Alabama, a couple must meet specific requirements, including the 'capacity' to marry, such as being of legal age and sound mind, agreeing to be married, and presenting themselves as married to the public. While cohabitation and having children together are not sufficient proof, documentation such as joint bank accounts, leases, or jointly owned property can support a claim.
| Characteristics | Values |
|---|---|
| Legal recognition | Alabama no longer recognizes common-law marriages that began after January 1, 2017. |
| Capacity to marry | Both partners must be of legal age, not already married, and not closely related by blood or adoption. |
| Sound mind | Both partners must be of sound mind. |
| Intention to marry | Each partner must intend to marry the other and take an affirmative act or say something to demonstrate this intention. |
| Holding out | The couple must hold themselves out as married to the public, causing the community to view them as married. |
| Evidence | Evidence of a common-law marriage may include joint bank accounts, leases, or deeds to jointly owned property. |
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What You'll Learn
Proving intent to marry
Alabama no longer recognises common-law marriages that began after January 1, 2017. However, common-law marriages that began before this date are treated as legally binding, with the same rights and responsibilities as a ceremonial marriage.
To prove a common-law marriage in Alabama, both spouses must show that they had the "capacity to marry" and that they intended to be married to each other.
- Verbal Pronouncement: While Alabama does not require a written document, a verbal pronouncement of intent is typically made during traditional marriage ceremonies. This verbal declaration demonstrates that both partners understand the commitment and have chosen to enter the marriage of their own volition.
- Acts and Statements: Affirmative acts or statements that demonstrate an intent to marry each other are essential. This could include referring to each other as husband and wife in private or in front of others, indicating a mutual understanding of being married.
- Holding Out to the Public: Before 2017, common-law marriages in Alabama were recognised when couples "held themselves out" as married to the public. This meant behaving in a way that led family, friends, and the community to believe they were married. This could include using the same last name, cohabiting, sharing finances, or publicly presenting themselves as a married couple.
- Supporting Documents: Providing supporting documents can strengthen the claim of a common-law marriage. This may include joint bank accounts, leases, property deeds, or other documents that demonstrate a mutual commitment and intent to be married.
It is important to note that simply cohabiting, having children together, or being in a long-term relationship does not automatically establish a common-law marriage in Alabama. The key element is proving the mutual intent to be married and holding themselves out as such to the public.
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Legal capacity to marry
Alabama has specific requirements for individuals to have the legal capacity to marry. Firstly, both parties must be legally competent to enter into a marriage. This includes being of legal age, which is defined as having reached the age of 19, and having sound mental health. Additionally, both individuals must not be married to someone else, as bigamy is illegal.
It is important to note that Alabama law requires both parties to be present when applying for a marriage license. A valid form of identification, such as a driver's license or birth certificate, along with a social security card, is necessary for the application process. These requirements are consistent for both ceremonial marriages and common-law marriages.
While Alabama previously recognized common-law marriages, it is important to note that as of January 1, 2017, the state no longer allows new common-law marriages. Any common-law marriages that began before this date continue to be recognized and are legally binding.
To summarize, the legal capacity to marry in Alabama includes meeting the requirements of age, sound mental health, and freedom from other marriages. The state has specific procedures for both ceremonial and common-law marriages, with the latter no longer being an option for couples after 2016.
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Common-law marriage before 2017
In Alabama, common-law marriages that began before 1 January 2017 are considered valid and are treated as legal marriages. However, proving a common-law marriage can be challenging, and certain requirements must be met.
Firstly, both parties must have had the legal right or "capacity to marry". This includes being old enough to marry, not being married to someone else, and being of sound mind. Secondly, there must be a mutual intent to be married. Each person must agree and affirmatively express their intention to be married to the other. Thirdly, the couple must publicly recognise themselves as a married couple. This can include sharing a last name, using “husband” and “wife” titles, filing joint tax returns, or even having their relationship status reflected on social media. Lastly, consummation and cohabitation must occur, although there is no specific time requirement for cohabitation in Alabama.
It's important to note that simply living together, having children, or cohabiting for an extended period does not automatically establish a common-law marriage. To prove a common-law marriage, a couple may need to provide evidence such as joint bank accounts, a lease in both names, or a deed to jointly owned property.
If a common-law marriage existed before 2017, it is generally recognised for legal purposes, including divorce, inheritance, insurance benefits, and social security survivor's benefits.
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Evidence of cohabitation
Since January 1, 2017, Alabama has banned common-law marriages. However, common-law marriages that began before this date are still recognised.
Cohabitation, or living together, does not automatically mean that a couple is considered married under common law. However, it is one of the factors that may be considered when determining whether a common-law marriage exists.
To prove cohabitation, a couple may provide evidence such as:
- Joint bank accounts
- A lease in both names
- A deed to property jointly owned
- Documents showing the same residential address
- Bills or other mail addressed to both partners at the same address
- Testimony from family and friends who can attest to the couple living together
It's important to note that simply living together is not enough to establish a common-law marriage in Alabama. The couple must also meet other requirements, including having the legal capacity to marry, agreeing to be married, and holding themselves out as married to the public.
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Divorce or death to end marriage
Divorce or Death to End a Common-Law Marriage in Alabama
A common-law marriage in Alabama is defined as a union between two people that is not formalized in the customary manner as prescribed by law but is created by an agreement to marry. It is just as legally binding as a ceremonial marriage and can only be ended by divorce or the death of one of the spouses.
Divorce
If a common-law marriage breaks down and cannot be saved, and the spouses want to end it, divorce is the only viable option. Common-law spouses have the same rights and responsibilities as any other married couple when it comes to divorce, including the division of property, alimony, child support, and custody.
Death
In the case of the death of one spouse in a common-law marriage, the surviving spouse may be entitled to inherit an "intestate share" of the deceased spouse's property, depending on the number of children and whether the deceased was married. To inherit under Alabama's intestate succession statutes, a person must outlive the deceased by five days.
Proving a Common-Law Marriage
Proving a common-law marriage in Alabama can be challenging, and specific requirements must be met. Both spouses must have had the “capacity” to marry, meaning they were old enough, were not already married, and were of sound mind. Additionally, both spouses must have agreed to be married and have “held themselves out” as married to others, causing their community to view them as a married couple.
To prove a common-law marriage, various documents can be helpful, such as joint bank accounts, a lease in both names, or a deed to jointly owned property. A notarized statement can also be used, in which both spouses attest to their agreement to be considered married and provide facts to support their claim.
It is important to note that Alabama no longer recognizes common-law marriages formed after January 1, 2017. Any common-law marriages established before this date are still valid and subject to the same legal processes as traditional marriages in the event of divorce or death.
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Frequently asked questions
Common-law marriage is a type of union where a couple lives together and presents themselves as married without obtaining a marriage license or undergoing a formal ceremony.
Common-law marriages that began after January 1, 2017, are no longer recognized in Alabama.
To prove a common-law marriage in Alabama, a couple must meet certain requirements. Both spouses must have the legal capacity to marry, agree to be married, and present themselves as married to their community. This can be demonstrated through an affidavit of common-law marriage, filing a joint tax return, or providing other supporting documents like joint bank accounts or a lease in both names.
