Alabama

Common Law Marriage in Alabama

Authored By: Legal Services Alabama LSC Funded

Information

This article clears up some myths about common law marriage.
It also explains when two people are married by common law.


Should I believe everything people tell me about common law marriage?

  • No. There are many false rumors about common law marriage.
  • Some think you have a common law marriage if you have a child together.
  • Others think that living together for some certain length of time makes you married.
  • These myths are not true.
  • You can live with someone for many years and have many children, but still not have a common law marriage.

How do I show a common law marriage?

  • You need to show three things.
  • First, both you and the other person must have the legal right or "capacity to marry."
  • Second, each person must intend to be married to the other person.
  • Third, you both must hold yourselves out to family, friends and the community as being married.
  • In Alabama, these three things make you legally married by common law. The common law marriage is just as legally binding as a ceremonial marriage. It can only be ended by a divorce or by the death of the husband or wife.

What is "capacity to marry"?

  • You must be an adult (must have reached your 19th birthday).
  • You must be of the opposite sex from the person you intend to marry.
  • You must be of sound mind.
  • You must not be married to someone else. People who have lived together for many years, call themselves husband and wife and have many children still do not have a common law marriage if one of them is still married to someone else.
  • Note: Even if you don't have capacity to marry when you start living with someone, you can still end up common law married.
    • This could happen if you or your partner gets a divorce while you are living together.
    • It could also happen if you move in with someone who is married, and their spouse dies while you are living with them.

If the person I'm living with says we are going to have a marriage in church some day, does this show intent to be married?

  • No. It may suggest that the person does not think they are married to you now.

Does a common law marriage end when we split up?

  • No. Once established, a common law marriage is just as valid and binding as a formal church wedding. It lasts until a court grants a divorce or one partner dies.
  • There is no such thing as a "common law divorce."

What if my spouse leaves and then says we never were married?

  • One problem is that it is hard to know what people intended when they were together. Proving intent can be very difficult.
  • Ultimately, you only know for sure if there is a common law marriage when a judge says so.
  • When a judge in a Court has to decide whether you were married, he or she will weigh many factors to decide intent to marry. These include:
    • Did you two live together?
    • Did the woman use the man's last name?
    • Did you sign contracts together to buy a home? A car?
    • Did you file joint tax returns?
    • Did you have joint bank accounts?
    • Did you each refer to each other as husband and wife?
    • Did you share household duties and expenses?
    • Did you have and raise children together?
  • The answer to any one question does not determine if you have a common law marriage. However, when taken together, the answers help a judge decide if you and your partner intended to be married.

What happens if my common law spouse dies?

  • You will have to prove your marriage to be able to inherit, receive insurance benefits, Social Security Survivor's Benefits or pension benefits.

Reviewed June 2007


AlabamaLegalHelp.org offers legal information, not legal advice. We try hard to make sure this website accurately explains your rights and options. However, the site does not apply the law to your personal facts. For this sort of legal advice, you should call a lawyer. To apply for free legal services in Alabama, call the Legal Services Alabama office that is closest to where you live OR call toll-free 1-866-456-4995. You can also apply online at intake.alsp.org.