Legal Ease by
Shane Givens
Oct. 25, 2010
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Am I married, according to common law? This week's question deals with a topic that I find is greatly misunderstood by many people. The question goes something like this: “My girlfriend and I have lived together for seven years. Are we common law married?” Many people I have talked with regarding this issue believe that if you live with someone for a period of time, then you are automatically married to them. Most commonly, people think the amount of time you have to live with someone is seven years. Actually, there is no set time limit for a couple to become common law married in Alabama. In fact, although time together is considered, it's usually not the biggest factor in a judge's determination of common law marriage. Under Alabama law, there are three common elements which must be present in order for a common law marriage to exist. 1. The parties must have the basic capacity to be married (be of the proper age and have the required mental capacity, for example); 2. they must both agree, either by their actions or direct statements, that they consider themselves married; and 3. they must do things publically that married people do (for example, live together, or share a last name). Under the law, regardless of the time period involved, a couple that does these things is married. And as a judge in a court case from the Alabama Court of Civil Appeals stated, “Once married by common law, the spouses are married. There is no such thing as being a 'little bit' married.” Difficulties arise, however, when trying to prove in court that a couple is common law married. Usually, when a couple that has lived together as man and wife splits up without being formally married, there is one party who thinks they are married and one party who thinks they aren't. When this situation arises, the only person who can legally determine whether a couple is common law married is the judge. When presented to the court, the judge must determine whether the couple “acted” like they were married. Some things the judge might consider to make this determination are: Do the parties live together? How long has the relationship been in existence? Do they have a child together? Do they share the same last name? Do they file taxes together or have joint bank accounts? Have they presented themselves to other people as being married? And so on. The judge then takes all this information and then determines, by the couple's actions, whether they are common law married. This column is intended for general information purposes only. It is not intended, nor should it be construed as, personal legal advice. The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise. Please e-mail questions for future columns in The Post to givenslaw@tds.net. |