To be defined as a common law marriage within the states that allow it, the two people must: agree that they are married, live together, and present themselves as husband and wife. Common law marriage is generally a non-ceremonial relationship that requires “a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.” Black’s Law Dictionary 277 (6th ed. 1990). In general, this is still the a decent description of common law marriage today.
Before modern state statutes, couples became married by many different means that developed from custom. These became the elements of a “common-law marriage,” or a marriage that arose through the couple’s conduct, instead of through a ceremony. In many ways, the theory of common-law marriage is one of estoppel – meaning that couples who have told the world they are married should not be allowed to claim they aren’t when in a dispute between themselves.
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. In addition, five states have “grandfathered” common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.
The U.S. Constitution requires every state to accord “full faith and credit” to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy. Also, there is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they can only be divorced by appropriate means in the place where they ask for the divorce. That means, in all 50 states, only by a court order. Therefore, if you live in one of these states, like Alabama, then it may still be necessary to get a divorce. An uncontested divorce in Alabama is the easiest and simplest way to get a divorce and may be an option for you, if necessary.
If you are unsure if common law marriage applies to you and your spouse, give us a call for a consultation with our Birmingham, Huntsville, Montgomery, or Anniston divorce lawyers today.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!