2014 April

What is Common Law Marriage?

Posted by | Family Law | No Comments

It is possible under Alabama law for a relationship to be recognized as a “common law marriage” without the issuance of an official marriage license by the State of Alabama and without the parties having celebrated a “ceremonial marriage”.   Speaking in general terms, there are several conditions which must be met in order for a court in the State of Alabama to recognize a cohabitation relationship as a “common law marriage”.  They are:

  • Both partners must be mentally capable of entering into a formal relationship. This means that common law marriages in Alabama cannot be entered into by two spouses who do not understand the nature of this kind of relationship or the responsibilities it involves.
  • Both partners must make the nature of their relationship clear to others. In order for a common law marriage to be recognized by the Alabama courts, both spouses must inform other people of the relationship. At all times, both partners must be open and straightforward in making sure others are aware of their marital status.
  • A couple must agree to enter into a permanent relationship in order to enter into common law marriages in Alabama. Sometimes two spouses may be thinking of obtaining a marriage license from the state at a later date. This places the status of their common law marriage in Alabama in question.
  • The spouses must have had intercourse. Without this kind of consummation, common law marriages in Alabama will not be legally recognized.
  • The Alabama courts will often consider the filing of joint income tax returns by the parties, the maintenance of joint checking and/or financial accounts, the use of the man’s surname by the woman and the representation to members of the public by the parties that they are”married” as evidence of a “common law marriage” relationship.

The reasons for entering into this kind of relationship are up to the two “spouses”. However, it is important to be aware that while the Alabama courts will, under certain circumstances, recognize a common law marriage, such an arrangement may lead to many complications. This is especially true if a relationship does not succeed.

Spouses who are involved in this kind of relationship should make sure to create a will documenting how they wish for their assets and resources to be divided after their death. Failure to do so will make it difficult for a partner in a common law marriage in Alabama to collect any part of an estate. Under such instances, the common law “spouse” who is undertaking the probate process will have to ask a judge to accept the relationship as valid despite the lack of state recognition. This will mean proving that the deceased common law “spouse” intended for their partner to inherit their estate.  Needless to say, this can be difficult and messy in situations where other family members enter into the proceedings in order to contest the validity of the alleged common law marriage.

Common law marriage relationships are only recognized by ten states and the District of Columbia.  This means that if you relocate to another state, that state may not necessarily recognize the validity of your common law marriage. In order to have your relationship legally recognized for tax and/or inheritance purposes, you will be required to obtain a marriage license from the state you have relocated to.

Furthermore, the long term cohabitation with a partner may open you up to divorce proceedings brought by that spouse in the event of a breakup of the relationship.  In the event that spouse is able to convince a court that the relationship should be recognized as a “common law marriage”, you may be subject to alimony awards, property division orders and other court orders such as those entered in any valid divorce proceeding.