Common Law Marriage Defined
Common law marriage, also known as marriage by common consent, is a legal concept that has evolved over centuries. Historically, common law marriage arose in England as a way for couples to obtain legal recognition of their relationship without the necessity of a formal ceremony. Couples would simply declare that they were married, and in time this "marriage by assertion" became a recognized legal institution.
In essence, a common law marriage is a union between two people who have lived together and publicly declared themselves as married, usually for a significant period of time. The key components of a common law marriage typically include:
The concept of common law marriage varies from state to state. Currently, only a few states, including Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Texas, and Utah , still recognize common law marriage as a valid legal institution. In these states, the requirements to establish a common law marriage vary and are determined on a case-by-case basis.
However, many states, including Arizona, have abolished the concept of common law marriage altogether, or limit its recognition to situations where the couple established a common law marriage prior to a certain date. For example, Arizona abolished common law marriage in 1939, but it will still recognize a common law marriage that was entered into before that date, as long as the other requirements of a common law marriage are met.
So, in Arizona, even though common law marriage does not exist as a valid legal status after 1939, a common law marriage that was entered into before that date, if recognized in the previous jurisdiction, can still be considered valid and binding in Arizona.
Does Arizona Recognize Common Law Marriage?
In Arizona, registering as domestic partners does not mean you’re in a common law marriage. This is important to note, because for legal matters, domestic partner registration and common law marriage aren’t the same thing in Arizona. When you register as domestic partners, you are establishing a legal relationship you can provide as proof of relationship when applying for employment, housing, or credit. However, it does not afford you all of the rights that traditional or common law marriage would afford you.
Why Doesn’t Arizona Recognize Common Law Marriage? In 1950, the Arizona Legislature passed a statute abolishing the common law marriage doctrine and explicitly required persons to marry "by obtaining a license issued under the laws of this state and the conditions prescribed by any such license." Thus, after 1950, Arizona did not allow a cohabiting couple to establish a marriage for purposes of Arizona law if they did not complete the requirements of a marriage license; however, if a valid marriage license was obtained, the marriage would not be affected by the 1950 statute. Over 30 years later, in 1987, the Arizona Legislature extended the provisions of the 1950 statute to all cases involving two unmarried persons cohabitating with sexual intent and thus prohibited all forms of common law marriage in Arizona. An important consideration for same sex couples in Arizona who may have established a common law marriage (prior to 1987 or in some cases, for couples who spent part of their lives in a state with different laws) in other states is that although the Arizona Legislature has abolished the doctrine of common law marriage in Arizona, marriages that were validly entered into in another state are "valid in this state," as long as they were "entered into" prior to 1996. The 1996 amendment left unaffected Arizona’s recognition of any marriage "by which two persons of the same sex have attempted to enter into a covenant without any legal force or effect solely because the marriage is between persons of the same sex."
What This Means for Same-Sex Couples This creates a legal framework for same-sex couples married in other states after 1996. Such marriages entered into outside of Arizona may not be considered valid under Arizona law, except to the extent the marriage may be expanded to include broader definitions of "marriage" afforded federal benefits. Only Arizona courts will be able to make determinations on recognizing these marriages when divorce, dissolution of premarital agreements, and probate matters arise. Common law marriages and domestic partnerships, however, are not recognized for the purposes of these processes by the Arizona courts.
When Does Arizona Recognize a Common Law Marriage from Another State?
While Arizona does not recognize or allow for common law marriages to be formed within the state, a common law marriage legally entered in another state may be recognized so long as the marriage in that state complied with all applicable laws of that state. The law concerning common law marriages can vary significantly among different states, as this concept is viewed differently in different jurisdictions throughout the country. This is why it is important to be aware of how Arizona approaches this area of family law in the event you are seeking to dissolve or enforce a common law marriage formed in another jurisdiction.
Because some types of agreements or obligations may only be available to legally married parties, recognition of the validity of a union is very important to individuals seeking to enforce their rights and obligations with one another. Division of property, spousal support, alimony, tax filings, insurance claims and other decisions may be directly affected by whether a couple is legally considered divorced after dissolution.
One important exception is how Arizona courts enforce a "common law jurisdiction restatement" pursuant to the Restatement of Conflict of Laws which states: "Parties who have legally married each other in one state may assert rights that the laws of the state grant to them, even though all later events affecting their right to maintain or dissolve the marriage occurred in another state that does not recognize such a marriage." Ariz. Rev. Stat. § 25-112 (2017).
Arizona Alternatives to Common Law Marriage
Cohabitation agreements are legal contracts made between unmarried couples who live together and share assets or property. Such contracts can outline how property is to be divided in the event of a separation or death of one of the partners.
While cohabitation agreements are not recognized universally, they are valid contracts in Arizona. If you choose to create a cohabitation agreement, both parties must sign the document and have it notarized. If you do not create a cohabitation agreement, Arizona’s laws of intestacy (if you die without a will) dictate how your community property will be distributed to your spouse and children. Without the cohabitation agreement, the division of the property will not necessarily be equitable.
If you cannot claim a common law marriage in Arizona, there are some alternative legal options available.
An Arizona domestic partnership is one form of an alternative to a common law marriage. As of July 20, 2017, same-sex marriages performed in Arizona were legal and same-sex couples could enter into a domestic partnership; however, as of September 23, 2017, a domestic partnership is no longer an alternative to domestic marriage for same-sex couples . Same-sex couples married in Arizona may be a domestic partner in addition to being legally married.
The law passed by the Arizona Legislature in May 2017 no longer allows opposite-sex couples to enter into a domestic partnership in Arizona. Only same-sex couples may register as domestic partners.
In some states, couples who were denied a common law marriage may be eligible for a civil union. A civil union is a legal contract that provides domestic partners with various rights and benefits. Domestic partners may acquire some of the rights and benefits of marriage, such as the right to support and inherit from each other, file income tax returns as a couple, gain treatment visitation privileges in hospitals, and health insurance benefits as a couple.
Civil unions are not recognized in Arizona. Arizona courts will neither recognize nor enforce civil unions that are entered into in other states. Arizona does not currently provide any alternative union to heterosexual couples that is common to all states.
What will the Judge Do if You Do not have a Common Law Marriage?
The absence of common law marriage in Arizona could put couples at a disadvantage when it comes to making legal and financial decisions down the line. Just because something was considered lawful or recognized in the past, neither of which is the case for common law marriage in Arizona, doesn’t mean that it is in the present.
The lack of common law marriage means couples do not have the right to make decisions for one another in the event of incapacitation. One or both parties may want to have the ability to make medical or financial decisions for the other person, but their relationship status means that only blood relatives and spouses have the ability to do so.
Couples without common law marriage will also have to go through the formal process of filing and obtaining a divorce should they choose to end the marriage. Instead of having the ability to talk through 60 days of separation before becoming separated, couples may have to legally separate before divorcing, as well as having to split up all of their worldly possessions according to Arizona community property laws.
If you’re in a committed relationship and you’ve lived together for a long time, it’s important to understand your rights and obligations under Arizona law in order to protect yourself and your partner with powers of attorney and wills.
Common Law Marriage FAQs
Common law marriage is an often misunderstood term within the legal community. While many people are aware of the existence of common law marriage, many are not aware that it is no longer valid in Arizona. When the subject of common law marriage comes up, here are some of the most frequently asked questions and answers:
Q: If common law marriage is no longer recognized in Arizona, does it still exist in any other state?
A: Interestingly, only 10 states allow common law marriage to be validly entered into; they are Texas, New Hampshire, Montana, Idaho, Iowa, Kansas, Colorado, Alabama, California and Rhode Island.
Q: Is there any way that common law marriages entered into prior to 2010 can be declared valid in Arizona?
A: No. Pursuant to A.R.S. § 25-112(C), "A marriage contracted…when both parties to the marriage have been domiciled in a jurisdiction that recognizes marriages of this type shall be recognized as valid in this state , unless the prohibited or void marriages are entered into to evade the laws of this state."
Q: Will a person be legally recognized as my spouse if we entered into a common law marriage in another state and then moved in together to Arizona?
A: Generally, not unless you were already married before coming to Arizona.
Q: If I moved to Arizona from a different state where I entered into a common law marriage, are my rights to community property and spousal support the same as if I entered into a marriage at the courthouse?
A: In short, yes. Generally, a common law spouse will be entitled to the same rights, with a few notable exceptions regarding what qualifies as community property.
Q: My girlfriend and I moved in together – what do I have to do to prevent a common law marriage from being imposed on us?
A: As long as you did not enter into a common law marriage in the state you are moving from, or explicitly agree that you will be married, you do not need to do anything.