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Explaining requirements of common law marriage

By Chesley Payne

A common law marriage is one that hasn’t been formalized through a ceremony or a marriage license with the state. The term comes from English common law, which recognized marriages could result from a husband and wife representing themselves as being married. The Supreme Court decision of Meisher v. Moore, 96 U.S. 76 (1877) states that unless a state passes a statute outlawing common law marriages then they are still legal under our system of law. Alabama is one of the states that hasn’t yet passed such a law. Therefore, common law marriages are just as valid as ceremonial marriages.

The requirements of common law marriage in Alabama are:

  • First, you and the other person must have the 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.
  • The capacity to marry in the state of Alabama involves a few basic requirements such as being of the age of majority (19), be of sound mind and not be married to someone else.
  • Contrary to popular myth, there is no set amount of time you must act as a married couple to be married. In some cases, a time as short as two to three days has been considered enough to establish evidence of marriage.

Common law marriage often becomes an issue in the event someone passes away without a will and a survivor claims common law status even though there has been no ceremonial marriage. The survivor must present evidence that all the above requirements are met before a court will declare a common law marriage. However, there’s no such thing as common law divorce, so a couple that is common law married must go through the same divorce process as all other married couples.

So watch out, if you and your significant other tell others you’re married, you just may be married, whether you like it or not.

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