Common Law Marriage: Does Arizona Recognize It?
Arizona does not recognize common law marriage. If you meet people who say they have heard it does, they are likely referring to historical common law in your state, and that is important for legal reasons. Under certain limited circumstances, the historical law may be important to understand when you are going through a divorce or a legal separation. It is also important to understand if you were married common law, because once you get out of a common law relationship, you will need to keep certain protections in mind to go forward.
Nonetheless, in domestic relations, there are significant concerns if someone believes that they are married under common law, such as the potential for spousal support and property division. There are also issues if you did not want to be married under common law.
In 1912, Arizona passed a statute, A.R.S. ยง25-111, that essentially adopted common law marriage. Since that date, common law marriage has been recognized as valid under Arizona law, at least for limited purposes. This statute, however, has since been repealed, and therefore, no common law marriage is recognized under Arizona law today .
In lieu of common law marriage, some people may mistakenly believe they are married under the law because they have executed a cohabitation contract. Cohabitation contracts may ultimately not be valid as a substitute for spousal support spousal rights or in property division. Cohabitation contracts may be used to identify tenants’ responsibilities, divisions of household expenses, and to delineate who owns what property under certain circumstances, especially when property is acquired during cohabitation.
Regardless, in Arizona, the most important thing to recognize is few rights exist. Cohabitating parties need to be careful because of limited remedies at law. Cohabitation also does not give rise to benefits such as insurance or workers compensation benefits.
A small number of states still allow and recognize common law marriage. Currently those states include Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire, Rhode Island, Texas, and Utah. Common law marriages are also recognized in Georgia, Mississippi, North Carolina, Oklahoma, Pennsylvania, South Carolina, and in some circumstances, in Florida, although Florida does not recognize common law marriage today.
Common Law Marriage Alternatives in Arizona
As previously mentioned, Arizona does not recognize common law marriages. However, just because common law marriages are not recognized does not mean that there aren’t some legal protections for relationships entered into by unmarried couples.
If two persons who are cohabitating enter into a written agreement that designates their share of property rights between each other, the court shall enforce the terms of that agreement, unless there is a compelling state interest not to do so. This is known as a cohabitation agreement or an unmarried cohabitation agreement. These agreements set out the rights of each party in areas such as ownership of property and accounts. Ideally they lay out the rights and responsibilities of each party with respect to children, animals, household responsibilities, etc. Cohabitation agreements can also set out how property will be divided if the couple separates or separates with no return to cohabitation.
Arizona does not currently recognize domestic partnerships. However, the City of Phoenix recognizes domestic partnerships. A domestic partnership is defined by Phoenix City Code as "two adults who are eligible together to form a domestic partnership." This means that the relationship must be committed, live together, not related by blood, be each other’s sole domestic partner, at least 18 years of age, and share at least one element with a marriage: this element can be domestic, social, economic or emotional. If one is found to have entered into a domestic partnership with any person aside from the primary domestic partner, domestic partnership status will be terminated.
Common Law Marriages from Other States in Arizona
The full faith and credit clause provides that each state shall respect the public acts, records and judicial proceedings of every other state, but what that means is not entirely clear. When Arizona courts consider the full faith and credit provision in order to determine whether to recognize a marriage, they often look to the Restatement of Conflicts section 283 and its comment d. which says "The validity of a marriage is determined by the place where the marriage takes place unless the marriage is contrary to the strong public policy of the state involved." By this, the restatement means that a common law marriage established in a common law state is valid for all purposes in Arizona (assuming the marriage is not contrary to Arizona’s public policy.) At least two Arizona appeals court rulings have held that an out-of-state common law marriage was valid in Arizona.
The thrust of the relevant Arizona cases is that if the common law marriage was recognized where it was entered into, the full faith and credit clause prevents Arizona from refusing to accept it. Thus, whether the common law marriage is valid in Arizona turns on where it was created. To be valid in another state, the parties must either co-habitate and hold themselves out as married (i.e. present a common front to the world at large) or else execute some kind of contractual agreement to be married. In some states, if the couple co-habitates for a specified period of time, the marriage is automatically recognized. Other states require evidence beyond co-habitation that the parties intended to marry.
Common Law Marriage Misconceptions: Legal Facts
Legal Implications of Believing You Are in a Common Law Marriage in Arizona
The serious problem with believing you are in a common law marriage when you are not is that the legal implications can be damaging to you long after the relationship has ended. The first implication is that if you are not legally married, you cannot expect equitable division of property or assets. Specifically, property that you acquired together will need to be divided equitably. At the same time , any property you had prior to the start of your cohabitation is off-limits for property division by the court system.
The second potential legal issue is the impact on inheritance. A spouse is entitled to some portion of their deceased partner’s estate. However, because there is no common law marriage in Arizona, a non-married partner has no such rights. This means that you may receive less than you had expected from your deceased partner’s estate or possibly nothing at all.
Legal Guidance for Arizona Cohabiting Couples
When it comes to unmarried couples living together in Arizona, legal advice is essential. Arizona is one of a few states that still recognizes common law marriage. However, even though these marriages may be legal, they remain fraught with controversy and misunderstanding.
Because of the uncertain legal status a common law union may bring, unmarried people in Arizona who live together and who plan to stay so should see a family law attorney regarding a cohabitation or property agreement. Cohabitation agreements are like pre-nuptial agreements between two people who plan to live together. They outline the couple’s responsibilities before they enter into a formal union and can help to simplify property disputes, financial divisions, and other concerns if the relationship later ends.
At Ryley Carlock & Applewhite , our experienced lawyers do not give legal advice lightly. If you are considering cohabitation or property agreements, we will provide you with the information you need to make a sound decision for your situation. We know how to draft agreements that protect your rights and represent your best interests.
Our law firm has extensive experience with uncommon situations and complex legal issues.
Whether you have specific questions about common law marriage in Arizona or need to know what rights you and your spouse-to-be currently hold regarding cohabitation and property agreements, we have the answers you need. Our family law attorneys assess each situation on an individual basis. From there, we craft legal solutions to fit our clients’ needs and to stand up in court if needed.