Is Arizona a Common Law State?
No. Arizona does not recognize common law marriages. In the past, Arizona did recognize them but that changed around 1939. Prior to then, the rule had been that if a couple wanted to avoid getting married via the legal system , they could simply agree with one another they were married and they had to hold themselves up as married. Over the years, the idea of common law marriage has become fuzzier and fuzzier and in large part it is an outdated idea given all the other ways in which people can get married these days.
What is Common Law Marriage?
What is Common Law Marriage?
Many people think that they are married just because they have lived together for an extended period of time. The definition of "marriage" is "a legal, voluntary union entered into with the intent to be married."
In many situations in Arizona, the extended cohabitation argument does not equate to a marriage. The concept of a common law marital status is not recognized in the state of Arizona. A common law marriage is defined as a relationship in which a couple lives together for a period of time and holds themselves out to others as being married, but has never been issued a marriage license or gone through a ceremonial marriage. In order for a common law marriage to be valid in a jurisdiction that recognizes common law marriages, there must be an established relationship agreement indicating the couple’s intent to be married. While the requirements vary from jurisdiction to jurisdiction, there are several common characteristics of common law marriage, including:
- The parties must be of the legal age to marry.
- The parties must possess the mental capacity to take on the legal responsibilities of marriage.
- The couple must cohabit after the intention to enter an agreement to marry but before the death of one of the parties or the issuance of a marriage license.
- The couple must hold themselves out as a married couple in the public. Examples might be sharing the same last name, using the word "husband" or "wife" to describe each other, using joint bank accounts, filing tax returns together and referring to each other as spouses when speaking to others.
Couples’ Legal Choices in Arizona
Unlike common law marriage, cohabitation is not a legally recognized status in Arizona. However, there are some legal protections available to protect couples who live together. Unmarried couples may choose to enter into cohabitation agreements or palimony contracts, which are already covered by the Uniform Premarital Agreement Act, or by contract law generally.
Cohabitation is defined as a couple living together and having a relationship that’s more than just a casual acquaintanceship. Cohabitation agreements are contracts between partners in a cohabitating relationship. They should be written and both parties should have legal representation, but are not blessed by statute. Cohabitation agreements can address property rights, support rights, and may determine estate rights upon death of a partner, as long as those circumstances are not covered by Arizona probate laws such as intestacy, dower rights, homestead rights, or community property laws. Cohabitation agreements are useful in establishing the needs of people entering a relationship as well as each person’s expectations.
An alternative to a cohabitation agreement is a palimony contract, which is similar to a cohabitation agreement under the Uniform Premarital Agreement Act. Palimony contracts essentially obligate one partner to provide support for the other, or division of property.
Unlike a post-nuptial agreement which is blessed by statute in Arizona, so that the contract is enforceable in the courts, there are no statutes that bless either of these options in such a way that allows for their enforcement. Arizona case law recognizes and will allow parties to enforce a contract as long as the terms of the contract do not violate the public policy of the state or the integrity of the marriage contract.
Arizona and Out-of-State Common Law Marriages
Arizona recognizes as valid those marriages which are valid where created. As a result, if a couple going to a state that recognizes common law marriage and presents themselves to the winning in such state, Arizona will respect that common law marriage as being valid and enforceable in Arizona. For example, consider an Ohio couple who meets the requirements for a common law marriage in Pennsylvania in 2010. The couple creates a valid common law marriage in Pennsylvania, but in 2015 the couple moves to Arizona. Arizona will recognize their marriage as legitimate. This is because the Arizona rule of "full faith and credit" requires that Arizona courts enforce court orders and judgments that were valid in the state that entered the order. Since the common law union was valid in Pennsylvania , Arizona enforces the common marriage from that state.
Another Ohio couple goes to Arizona and creates a common law marriage there by meeting the requirements. The couple spends three years in Arizona, finds out that common law marriage is not a recognized marriage in Ohio and move to Ohio in order to be able to marry by common law.
Depending on your circumstances, establishing that a common law marriage is valid could be either very easy or very difficult. If you can establish the validity of your marriage by way of the certificate or other document, that is certainly the best option and the one that most would choose. If, however, the certificate or document is not valid, you will have to prove that it is a valid marriage by presenting testimony and evidence of all appropriate factors.
Rights and Protections of Property
The property and legal rights of unmarried couples in Arizona can be significant. However, there are no laws in Arizona that give unmarried partners the automatic right to claim property or support from each other in the event of a separation. While Arizona does recognize common law marriages recognized in other jurisdictions where they are recognized, the same rights and claims do not exist for unmarried couples under Arizona law. The doctrine of "equitable remedies" gives courts more flexibility to protect the interests of unmarried partners. The only way to create an enforceable "contract" between unmarried partners for support or property division in the event of a separation is through a Cohabitation Agreement signed by both partners. A property settlement agreement signed by both parties in writing is also enforceable.
If an unmarried partner has received funds from the other partner and has no obligation to repay those funds, those funds can form the basis of a constructive trust. A constructive trust can create an equitable remedy (in other words, "fairness") from the courts to protect the rights of the partner who gave the funds and protect the interest of the partner who has received the funds. The courts will scrutinize the relationship to determine if the giving partner intended to make a gift of the funds or whether the receiving partner was merely acting as the "agent" of the giving party.
The most important factor for unmarried partners to consider in an Arizona property settlement is that the remedies for their rights as unmarried partners are different than spouse and pre-marital contracts are necessary to protect a partner’s interest.
Obtain Legal Consultation
When considering a common law marriage in Arizona or any alternative arrangement, seeking legal advice is paramount. It should not be assumed that the same rules apply to a new kind of relationship as they do to a standard marriage. An attorney will be able to comprehensively advise a client on the laws and formalities surrounding many family law matters, including divorce , community property division, spousal maintenance, guardianship, adoption, and premarital agreements. It is essential for an individual to seek the counsel of a skilled family law attorney when deciding what is best for them, as well as how to appropriately navigate the process of formalizing an arrangement, should they choose to enter into a marital agreement.