Alabama is one of the last states to recognize common law marriages. However, this will be changing soon. Republican Representative Mike Jones has recently introduced a bill that will prohibit anyone from entering into a common law marriage after January 1st, 2017. Any common law marriage entered into before that date that is otherwise valid will still be considered a legally binding marriage. The bill was signed by Governor Robert Bentley on May 3rd.
A common law marriage requires three things in order to be considered valid. First, both parties must have the “capacity to marry.” This is basically just the legal right to be married. In order to have the capacity to marry, one must be an adult of sound mind who is not currently married to someone else. The second requirement for a valid common law marriage is the intention of both parties to be married to the other person. This requirement is the one that often causes legal problems later on, as one’s intention can often be hard to prove. For example, in order for a spouse in a common law marriage to be legally entitled to the assets of their wife or husband upon their death, they must prove to a judge that the deceased person intended to be married to them. Lastly, both parties must hold themselves out to family, friends, and the community as being married. If properly fulfilled, these three requirements are just as legally binding as a ceremonial marriage in a church or in front of a judge with a marriage certificate. Like any other marriage, a common law marriage can only be ended with a divorce or the death of one of the parties. Common law marriages do require a formal divorce process. There is no such thing as a “common law divorce,” and simply breaking up or moving out does not suffice.
When determining if two people truly intended to be married, a judge must consider several factors. Did the couple live together? Did either of them take on the other’s last name? Did they sign contracts for a car or a home together? Did they file joint tax returns, own joint bank accounts, or generally share their finances together? Did they refer to each other as husband and wife? Did they have and raise children? While the answer to any of these questions alone cannot determine someone’s intention, it is the judge’s duty to consider all of them when making a decision.
Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah are now the only states left that recognize some form of common law marriage. If you and your significant other do not consider yourselves to be married before January 1st, 2017 then doing so will thereafter require a marriage certificate and an appearance before a judge.