The End of the Common Law Marriage Era
A brief status update on common law marriage in Alabama.
Common Law vs. Traditional MarriageAlabama was one of the last states to recognize common law marriages. Beginning January 1, 2017, however, Alabama will no longer recognize these non-traditional marriages. Although common law marriages established prior to January 1, 2017 will still be recognized by the courts, no new common law marriages can be formed. To be considered a married couple, two people wishing to become married must now enter into a traditional marriage.
A common law marriage is different than a traditional marriage. In a traditional marriage, a couple applies for a marriage license and has a marriage ceremony. In a common law marriage, two people agree to enter into a marriage relationship and present themselves to the public as married. Common law marriages are supported by evidence such as joint tax returns, joint bank accounts and references to one another as "husband" and "wife." Once common law married, a couple enjoys all the benefits of a traditional marriage. Like all married couples, those who are common law married must settle property rights and child custody through a divorce and must be divorced before either party can marry another person.
Common Law Marriage and the CourtsCommon law marriages often come into court because one party denies the existence of a marriage relationship. When that occurs, courts must consider a range of factors and determine whether a common law marriage was created. While a couple may create a common law marriage without any formal or legal process, there is no such thing as a common law divorce. All married couples, common law or traditional, must divide their assets through a divorce proceeding.
The purpose of the new law is to eventually erase this confusion. Although no new common law marriages will be created after January 1, 2017, Alabama will continue to recognize common law marriages created prior to 2017. Thus, for the court to consider a couple to be married, the couple must either obtain a marriage certificate and have a marriage ceremony or enter into a marriage relationship and hold themselves out as married prior to 2017. One day, far into the future, 2017 will be so far in the rear-view mirror that courts will no longer be required to entertain common law marriage questions. However, we're not there yet!
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