Alabama Common Law Marriage








Common Law Man and Wife

Common Law Husband and Wife (Flickr.com)

A common law marriage in Alabama is just as valid as being married in a church or courthouse. In Alabama common law marriage requires cohabitation, capacity, present agreement or consent to be husband and wife and consummation. The question is do you have a common law marriage?



Alabama Common Law Marriage Requirements

You have to meet all the requirements of a common law marriage for it to be valid. If one of the requirements is not met then you are not married. Furthermore, if either party disputes that there is a common law marriage, then the matter must be tried in court . It is the judge’s  job to determine if a common law marriage exists based on the evidenced presented to the court. The requirements are:

  • cohabitation
  • capacity
  • present agreement or consent to be husband and wife
  • consummation

Cohabitation Requirement for Common Law Marriage

Just because you live, eat, and sleep together does not mean that you have a common law marriage. Furthermore, the parties can also have sex, but still not deemed to have a common law marriage. The main focus is whether it is the intention of the couple to become husband and wife.

Determination of Common Law Marriage

Whether the essential elements of a common-law marriage exist is a question of fact. This means that if the matter is tried in court the judge will determine whether the parties had the intent, or the mutual assent, to enter into marriage. This can be proven by offering clear and convincing circumstantial evidence.

Ways in Which a Common Law Marriage is Proven

The common law marriage may be shown in any way that can be known by others, such as:

  • living together as man and wife
  • referring to each other as man and wife in the presence of others
  • indicating that you are married in various types of documents or transactions
  • sharing of household duties and expenses
  • generally engaging in ‘all of the numerous aspects of day-to-day mutual existence of married persons.

Effects of a Common Law Marriage

Once a common law marriage has been proven, you have to get a divorce if you want to marry someone else or if you want to dissolve the relationship. There is not a common law divorce. Alabama treats common law marriage couples and ceremonially-married couples the same. Both are subject to the same divorce laws and therefore would have to go through the divorce process too. A court can divide a common-law couple’s property and even award alimony.

As a divorce lawyer, I can give you advice on the proper course to take if you think you have a common law marriage. Just give me a call.
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