No matter how long the cohabitation lasts, it takes more than just living together to create a common law marriage in Alabama. Under Alabama law, a common law marriage must have four key characteristics: First, both parties have the capacity to marry, meaning they are at least 18 years of age and mentally competent. Second, they mutually agree that they are married. Third, they must hold themselves out to friends, family and the general public as married. And lastly, the parties must consummate their marriage.
The validity of common law marriages is often challenged, particularly when purported spouses apply for programs or benefits reserved for married persons, such as health or medical coverage, Social Security and disability benefits, or proceeds from a life insurance policy. To overcome such scrutiny, it is not enough to simply say you're married; you and your common law spouse must live and act as if you are. Therefore, should a dispute arise, an Alabama court will look at a variety of factors, such as whether you both share a surname, home, expenses and bank accounts, raise children together, file joint tax returns, and refer to each other as either husband or wife when in the company of others.
If you and your former spouse successfully enter into a common law marriage, you cannot simply walk away if the marriage doesn't work out the second time around. In other words, there is no such thing as a common law divorce. If you have a common law marriage, to get a divorce in Alabama, you must comply with all the same requirements as couples who enter into a traditional marriage. This means you must file for divorce in the appropriate circuit court, attend any necessary hearings or meetings with the court, reach a marital settlement agreement with your spouse regarding property and debt division, spousal support, child support and custody or, if the two of you are unable to agree, you must go to court, where a judge will decide these issues for you.
In a common law marriage, both spouses must consider themselves married. Therefore, if a spouse gives any indication that she believes she is not married, or circumstances are such that a spouse cannot reasonably believe she is married, a common law marriage does not exist. For example, a party that was previously married and never obtained divorce prior to entering into the new relationship cannot reasonably believe that she entered into a new, common law marriage.