Common Law Marriage
Recent Law Change
Alabama has passed legislation that declares any common law marriage formed after January 1, 2017 as invalid. Common law marriages entered into before January 1, 2017 will remain valid.
There are many misperceptions 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 prove a common law marriage?
- Both you and the other person must have the legal right or "capacity to marry."
- Each person must intend to be married to the other person.
- Both people 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.
1) What is "capacity to marry"?
- You must be an adult (must have reached your 19th birthday).
- You must be of sound mind.
- You must not already 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.
Even if you don't have the 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.
A) 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.
B) 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.
C) What if my spouse leaves and then says we never were married?
One problem is that it is difficult to know what people intended when they were together. Proving the required intent to be married can be very difficult. Ultimately, you only know for sure if there is a common law marriage when a judge says so.
2) What is intent to be married? 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 factors include the following:
- Did you two live together?
- Did one partner use the other partner'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.
3) 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.
4) Do other States recognize Common Law Marriage?
The institution of common law marriage has been steadily declining in recent years. Of the 50 states, 40 no longer allow such marriages to be contracted within their borders. Nevertheless, most states will recognize a marriage that was valid in the state of the parties' residence at the time of marriage. This fact, combined with the mobility of modern society, continues to force courts in all states to confront common law marriage issues.
The cases on interstate recognition of common law marriages fall into two separate categories. When the couple resided in a common law marriage state at the time of the alleged common law marriage, courts in other states simply apply the marriage state's law to determine whether such a marriage was validly contracted.
A more difficult situation arises, however, when residents of a non-common law marriage state visit a common law marriage state for a short period without becoming residents there. The existence of a common law marriage in this situation depends not only on the other state's law, but also on the forum state's policy. For this reason, recognition of such marriages in the forum state is not always accorded.
At least three states Illinois, Minnesota, and Arkansas refuse to recognize foreign common law marriages of their own residents. This refusal is based on the states' public policy against such marriages.
In Illinois, a line of older cases declined to recognize common law marriages by Illinois residents on public policy grounds. In Minnesota, the marriage statute provides that marriages not contracted by obtaining a license and observing certain other formalities "shall be null and void." Minn. Stat. Ann. 517.01 (West 1990). In Laikola v. Engineered Concrete, 277 N.W.2d 653, 656 (Minn. 1979), the Minnesota Supreme Court interpreted this provision as preventing a Minnesota court from recognizing a foreign common law marriage by Minnesota residents. In Arkansas, the marriage statute is more explicit. It provides in relevant part that "[a]ll marriages contracted outside this state which would be valid by the laws of the state or county in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in the state." Ark. Code Ann. 9-11-107 (Michie 1987). In Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993), the Arkansas Supreme Court interpreted this provision as requiring residence in the common law marriage state in order for such a marriage to be recognized in Arkansas.
- Contacts with Common Law State
A number of other states require their own residents to demonstrate some minimum amount of contacts with the common law marriage state before the court will consider whether a common law marriage actually arose under that state's law.
The courts in the cases just discussed employed a two-part test for the recognition of a foreign common law marriage in the couple's state of residence. First, the proponent of such a marriage was required to show that the couple had sufficient contacts with the common law jurisdiction to avail themselves of that state's law. Then the proponent was required to prove each element of a common law marriage under that state's law. In none of the cases was the proponent able to meet the first requirement.
- Conduct in the Common Law State
Most other states apply only the second prong of the test described above. That is, they require the proponent of the marriage to prove each element of a common law marriage under the law of the relevant state, with reference to the couple's conduct in that state.
- Conduct in Both States
The New York courts have taken a very liberal approach to foreign common law marriages by New York residents. The courts of this state consider the couple's conduct in both the common law jurisdiction and in New York to determine whether the elements of such a marriage are present. As might be expected, the result is usually a finding of a valid common law marriage.
This brief survey of recent cases involving foreign common law marriages by residents of states that no longer permit such marriages has revealed four main approaches to the problem: (1) nonrecognition in any case (the Illinois rule); (2) recognition if the couple had sufficient contacts with the common law state and met that state's requirements for such a marriage (the New Mexico rule); (3) recognition if the couple met the common law state's requirements for such a marriage while present in that state (the Connecticut rule); and (4) recognition if the couple met the common law state's requirements for such a marriage with reference to the couple's conduct in that state and in the state of residence (the New York rule).
Call us today for a free consultation. Gene M. Bowman with Bowman Law Firm, Huntsville, Alabama.