Common Law Marriage Myths

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common law marriage myth vs reality

People often talk about common law marriage as though it is some sort of loophole to get around the traditional model of marriage. Myths and misinformation abound. From theories about saving on taxes to avoiding divorce, people have come up with countless ideas over the years. However, the truth could not be clearer. Effective January 1, 2017, Alabama outlawed common law marriage. Period.

See the Alabama Code, Section 30-1-20, which states: “No common-law marriage may be entered into in this state on or after January 1, 2017.” However, the law also states that “an otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state.”

Nevertheless, Alabama still honors existing common law marriages that were validly created prior to January 1, 2017, and the state still honors marriages of those with valid common law marriages in other states, provided they were valid and legal in the state where obtained. So, it is worth looking at some of the most common myths that here have popped up over the years.

You Just Have to Live Together for Seven Years

It is hard to say where this myth came up because there is nothing in Alabama law that creates a magic number for the amount of time you need to live with someone to create a common law marriage. Even in states that still allow common law marriage, it is more complicated than just residing together. Otherwise, roommates would have to be very careful.

It is Automatic

Nope. Again, this is a complete myth. Just residing together or using another person’s last name is rarely enough to satisfy a state’s common law marriage requirements. Only a few remaining states allow common law marriage, and they are quickly eliminating these informal arrangements, just as Alabama did this year. Even in states that still do, like South Carolina, you have to get a court to recognize it for many purposes. Nothing is automatic. Otherwise, the law would effectively force people into marriage without their own consent. This would be absurd.

The Woman has to Use the Man’s Last Name on a Legal Document

Wrong again. It is important to think through exactly how this would affect people. If true, it means a woman could impose marriage on a man without his consent or even knowledge. The law does not allow that. Not to mention, following the decision in Obergefell v. Hodges, it would likely be unconstitutional to make common law marriage legal based on a gender-based action.

The Man Must Declare the Woman His Wife Publicly

Again, this is not true for many of the same reasons as the last one. If true, it means a man could just make a woman his wife by virtue of his declaration. Both people have holding themselves out publicly as being married, however, generally does fulfill one of the required elements to prove the existence of a common law marriage.

We Do Not Need a Divorce

Here is the real question. The truth is that common law marriages are not a shortcut or loophole. They are still legal arrangements that require dissolution upon breakdown. Just like a business or major contract, if there is a breakdown that requires two people to separate their assets, debts, custody of children, and real estate, then a family court will be involved.

If two people are married in a common law state, such as South Carolina or Texas, and you later move to Alabama, you will still require a divorce in order to legally sever the marital bonds. Physical separation does not alter your rights or obligations, and there’s no such thing as a “common law divorce.” Throughout the Birmingham area, the experienced family law attorneys of the Five Points Law Group are available to advise couples with unique and complex legal issues. Call (205) 263-0743 to speak with an experienced family law attorney today.  

Heather Fann
Heather Fann
Heather's practice seeks to preserve the dignity of clients through healthy paths for their changing families, employing both modern and traditional means of resolution including collaborative practice and methods such as use of Parenting Coordinators, as well as mediation, though she stands ready to litigate where necessary.

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