The primary test for common-law marriage is the mutual intent of the parties to be married. Prior to the recent change in law, Alabama law did not require a marriage license, ceremony, or the formal exchange of vows in order to create a valid marriage. Marriages which are informally contracted without a license or ceremony are known as common-law marriages.
Up until it was recently outlawed, Alabama was one of only 9 states that authorized common-law marriage, although all 50 states recognize common-law marriages that were contracted in a state that allows it. This means that if you and your spouse formed the intent to be married while living in Mobile, Alabama, as long as you met all the state requirements for common-law marriage in Alabama, your marriage would be recognized nationwide, including states which have never authorized common-law marriage.
The requirements for common-law marriage in Alabama are:
(a). Both parties must have the capacity to marry. This means that the parties must be of the opposite sex, and each party must be mentally competent, of legal age to marry (over 18 or over 14 with parental consent), and not married to someone else.
(b). Present agreement or mutual consent to enter into marriage. In order to create a valid common-law marriage, the parties must actually intend to be married and consider themselves “married,” as distinguished from dating, cohabitating, or engaged. Living together, purchasing property together, raising children together, and sharing household duties and expenses are all very common practices of married couples, but these factors alone are not enough to establish a common-law marriage, no matter how long a couple cohabitates. The law requires that both parties actually considered the relationship a marriage.
(c). Public recognition of the marriage. The parties must hold themselves out as married to family, friends and the community. Introducing each other as “my husband” or “my wife” and using the same last name are examples of a couple holding themselves out as married.
(d). Consummation or Cohabitation. The parties must live together as husband and wife and engage in sexual intercourse. There is no requirement regarding the amount of time a couple lives together. A common-law marriage can be formed the day the couple moves in together provided the other elements are met.
A common-law marriage, once formed, is a valid legal marriage just like any other, with all the same rights and responsibilities. Parties to a common-law marriage may file taxes together, claim each other on health insurance plans, assert inheritance claims, and receive other benefits to which other married couples are entitled.
And like any other marriage, common-law marriage may only be terminated through death or divorce. There is no “common-law divorce,” and couples wishing to dissolve a common-law marriage are subject to the same divorce laws as other married couples, including equitable division of property and debt.
UPDATE: The state of Alabama no longer recognizes common law marriages that occur after January 1, 2017