What is Common Law Marriage?
Common law marriage is a legal framework that historically allowed a couple to live together, or otherwise conduct themselves as spouses without any formal indication such as a marriage license or traditional ceremony. Thus, if you have lived or co-habitated with a person, and if you comported yourself in a fashion akin to a married couple, in many states you may still be held legally and financially responsible for that person in a manner similar to traditional marriage.
A Brief History
Common law marriage dates back to the 12th century in England where marriage was defined as any couple that lived together for a specific amount of time. Even though this practice was outlawed , many states in the U.S. continued the tradition. Over time, more restrictions were placed on common law marriages, and so by the 20th century, common law requirements became almost identical to the legal requirements for formal marriage. By the modern era, most states had repealed their common law statutes.
Common Law Marriage Today
Common law marriages are not recognized in all states, though marriage laws vary somewhat in each state. More specifically Arizona does not recognize common law marriages.
Arizona’s Position on Common Law Marriage
The issue of common law marriage in Arizona has been clarified by statute. Simply, there is no common law marriage in Arizona. You cannot "become" married in Arizona by simply living together or by holding yourself out as a married couple to the public. If you cohabitate in Arizona and hold yourselves out as married to the public, there are no legal consequences in Arizona from which either party can shield themselves. Recently, in 2003, the Arizona legislature adopted A.R.S. § 25-111. This statute provides in relevant part: A. A marriage is prohibited if: 1. Either party is lawfully married to another person at the time of the marriage, whether in this state or elsewhere. 2. The cohabitation between the parties is inconsistent with the marriage relationship. 3. The parties cohabitate in a jurisdiction that does not recognize common law marriages. 4. One of the parties has been convicted under section 13-3605. 5. The parties have lived together in a marriage-like manner for an extended time period. B. A marriage is not prohibited if: 1. The marriage between the parties occurs for any period of time after entry of a decree of dissolution of marriage or a decree of annulment. 2. The marriage between the parties occurs after entry of decree of separation.
Arizona Revised Statutes §25-111
Essentially, the Statute makes it clear that the only way you can get married in Arizona is to have a marriage license. That license must be obtained from the state of Arizona and must be signed by the County Clerk who issues it. That is, the law of Arizona is rejecting common law marriage with its definition of what constitutes a marriage. In essence a marriage is a licensure scheme with the government. Unlike, say, common law marriage, based upon a series of facts that are circumstantial at best, the government approves and issues a license to individuals to marry and based upon that license, the license is the evidence that the parties to the marriage are indeed parties to the marriage. Recently, Arizona courts have overruled any common law marriage based upon contract law notions. For instance, in a 1991 family court decision, the court expressly rejected the notion that cohabitation, without a marriage license, could be the basis to determine a marital relationship. In re Marriage of Murkowski, 171 Ariz. 192, 829 P.2d 1236 (Ariz.App.,1991). The Court concluded that since the marriage statute at issue did not define ‘marriage’ as requiring a license, the legislature intended "to limit the definition of marriage in Arizona to that which is set forth in the statute." Id. at 193, 829 P.2d at 1237. However, the Court also stated that even if cohabitation could be the basis for a marital relationship, there was insufficient evidence, other than mere cohabitation, to support a contrary finding. Id. The Arizona Courts have also held that the State Legislature was within its rights to outlaw a common law marriage. In 1998, in Christy v. McKechnie, 194 Ariz. 309, 982 P.2d 579 (1998), the Arizona Supreme Court ruled that the legislature properly eliminated the common law marriage which had been the law in Arizona for over 100 years. The Court noted that prior to the legislation to eliminate common law marriage in 1998, Arizona’s common law marriage requirement was unique. Id., at 578-80. Ohio was the only other state with a common law marriage requirement. Id., at 579. See also, Nicole Alcock, "You are Unmarried in Arizona: Is Cohabitation in Arizona Simple Living or Marital Rape?," 33 Ariz. St. L.J. 295 (2001) (noting same). In short, you cannot be married in Arizona in the absence of a marriage license. Just because you hold yourself out to the public as married, do not rely upon that as legitimate basis to claim a marital relationship. Thus, the answer is "no" Arizona is not a common law marriage state.
Arizona’s Exceptions and Clarifications
As stated above, Arizona has abolished common law marriage. However, there are a couple of exceptions or considerations to note. The first is that Arizona does recognize marriages for which a prior state recognizes common law marriage. Therefore, the couple moving into Arizona, for example, may have entered into a common law marriage in a prior state which provisions for such marriage. Arizona respects that prior relationship as a valid marriage.
Similarly, while it is unusual for common law marriages to exist, the reverse is true with regards to ceremonial marriages. Some states grant recognition to ceremonial marriages that take place in Arizona even though the couple no longer resides in Arizona and the other state does not permit ceremonial marriages.
Recognition for Relationships Outside of Common Law
Besides common law marriage, Arizona does recognize two other alternative relationship recognitions. One is a domestic partnership created under state law. The other is a cohabitation agreement, which can be created as a contract between the parties.
Although unique to those specific states, domestic partnerships are similar to common law marriages. Domestic partnerships confer many of the same legal rights as marriages and establish the same obligations. Like a common law marriage, a domestic partnership becomes legally binding when an unmarried couple files a certificate of domestic partnership with the Arizona Secretary of State (A.R.S. § 25-902 et seq.). After the domestic partnership is registered , the couple is afforded many of the same legal rights and benefits as couples who are married. A domestic partnership can only be dissolved by filing a termination with the Secretary of State (A.R.S. § 25-932).
In the absence of a legal or statutory domestic partnership, unmarried couples in Arizona may choose to enter into a cohabitation agreement recognizing the nature of their relationship and establishing how they will proceed in the event that they separate. A cohabitation agreement is a contract between the parties that outlines their respective rights and obligations. Like any other contract, a cohabitation agreement is legally binding, and it’s important that they be drafted carefully because they will govern the rights of the parties upon separation. Cohabitation agreements are enforceable in other states without provision for special treatment.
Advice to Unmarried Couples
When couples cohabit in Arizona without a formalized marriage, whether to enter into a common law marriage brings with it a host of legal considerations. While some of those considerations may be shared with those who are legally married, many unique challenges exist for unmarried couples and our family law attorneys have practical advice to mitigate the default – and often unintended – legal consequences.
First and foremost, if you have no present plans to marry your partner but are living together, Arizona encourages those couples to at least enter into a written "cohabitation agreement." This agreement is essentially a contract between the two partners documenting their respective contributions to property and finances during the relationship. This could be important from a probate perspective if one of the partners dies without a will: Arizona’s intestate laws would dictate that rights would vest differently than if there was a contract in place. Likewise, if the relationship were to end and one partner wished to receive his or her "fair share" of property, a cohabitation agreement could be important evidence to his or her perspective. Even without a specific cohabitation statute in Arizona, a good attorney will be able to lay out what issues may arise and how the parties can create a contract to address those issues. A cohabitation agreement can be helpful when considering issues like how to manage the property you have acquired together, what happens if you elect to buy a home together, and what will happen to the assets you have accumulated if you should decide to separate.
It is also important for cohabitating couples to engage in proper estate planning to ensure the surviving partner can receive preferred treatment upon the death of his or her partner. Without a common law marriage recognized by Arizona, both partners must ensure the other is taken care of after death by executing valid wills, health care proxies, and durable powers of attorney. This will make it easier for the surviving partner to access the deceased’s property, make medical decisions on behalf of the deceased, and handle the personal and financial matters of the deceased.
Cohabitating couples must also have a plan in place for the support of any children they may have together if they should separate. Custody laws in Arizona do not discriminate between married and unmarried couples when determining whom the children of these relationships will live with. Therefore, if you plan to separate, it is imperative that you have a detailed parenting plan in place to avoid unnecessary litigation.
Common Law in Arizona: Conclusion
Currently, Arizona has no common law marriage; however, a few of its neighbors do have it. And being a community property state, understanding Arizona’s state laws is crucial. In the case of a separation, the division of community property is systematic and based on what each person brought to the relationship. Any debt or credit card acquired throughout during the course of the relationship is considered community property, even if it was opened in one name or without the other person’s knowledge .
Since common law marriage is not a potential outcome of a relationship, inheritance or divorce, Arizona couples would be wise to speak to an attorney about estate planning, premarital agreements, nonmarital contracts, property division, custody stipulations, and any other concerns they may have about their relationship.