What You Need to Know About Common Law Marriage in Arizona

Romantic couple at sunset. Common Law Marriage Arizona.

While common law marriage is not commonly recognized in the state of Arizona, under certain circumstances it can be legally binding. In this article, we will discuss what qualifies as a common law marriage in Arizona, and how to prove a union that fits its definition.

Arizona does not allow couples to enter into a common law marriage within its borders. However, they were permitted for a brief period of time in the early 1900s. You can read more about the history of common law marriage in Arizona here.

Defining Common Law Marriage

Common law marriage, also known as “informal marriages,” is a form of legal marital relationship recognized by some states. It is not solemnized in the ordinary way. Rather, there are four elements for creating it (in order for it to be recognized in Arizona). The couple must establish the common law marriage in a state that permits them.

First, the couple must have a present agreement to marry. Second, they must cohabitate (in other words, live together). Third, they must hold themselves out as husband and wife. Black’s Law Dictionary 277 (6th ed. 1990).

Then here is the fourth element that is specific to Arizona. Assuming the couple has established a valid informal marriage outside Arizona, when they move to Arizona the marriage must not be void under our state statutes. A.R.S. 14-101 lists marriages that are void or prohibited. For example, Arizona does not permit marriages between first cousins. (There is an exception if the parties to the marriage were residents of Arizona prior to 1996.)

The Atkinson Case.

Let’s assume a couple resided in a common law marriage state at the time of the alleged marriage. Then they move to Arizona. In that case, the Arizona court will apply the prior state’s law to determine whether such a marriage was validly contracted. See, e.g., Atkinson v. Valley National Bank of Arizona, 22 Ariz. App. 297, 526 P.2d 1252 (1974) (common law marriage of former Texas residents recognized in Arizona; validity of marriage governed by Texas law).

The above discussion assumes that the couple was in a common law marriage state (like Iowa or Texas), created a common law marriage there, and then moved to Arizona. But what happens if an Arizona couple visits a common law marriage state? Keep reading to find out.

What Happens If An Arizona Couple Visits A Common Law Marriage State? Can They Enter A Valid Marriage That Way?

In Vandever v. Industrial Commission of Arizona, 148 Ariz. 373, 714 P.2d 866, 871 (Ct. App. 1985), the Arizona Court of Appeals held that an Arizona couple’s trips to Colorado had not resulted in a common law marriage. The parties cohabited in Arizona for several years and had a child together. They traveled to Colorado for three weeks to attend the wedding of a family member. While there, they cohabited and introduced themselves as husband and wife. They also allegedly heard a radio broadcast about common law marriage and as a result decided that they were married. A year later they returned to Colorado for two weeks while the man attempted to find employment. After traveling to other states, they returned to Arizona, where the man was killed in the course of his employment.

Arizona Court of Appeals Refuses To Recognize Marriage Based On Trip To Colorado

The Arizona Court of Appeals affirmed the Industrial Commission’s denial of widow’s benefits to the woman. The court first noted that Colorado law governed the case. Then, the court applied the three elements of a Colorado common law marriage. The only evidence of an agreement of marriage was the couple’s supposed decision after hearing the radio broadcast. Such evidence was insufficient to establish such an agreement. Further, the woman had not presented enough evidence of cohabitation or general repute in Colorado. Evidence of how others had perceived them at the wedding was hardly evidence of a “general and uniform reputation” of marriage. 714 P.2d at 871-72. See also Gonzalez v. Satrustegui, 178 Ariz. 92, 870 P.2d 1188 (Ct. App. 1993) (common law marriage did not result from Arizona couple’s one-week trip to Kansas to attend woman’s family reunion. There was no evidence of agreement to become married while in Kansas).

Does Common Law Spouse Have Rights In Probate In Arizona?

If your common law spouse died while a resident of Arizona, you may have rights as a spouse. There will be legal issues that need to get sorted out. For instance, are you protected by Arizona’s community property laws? Do you have priority for appointment as personal representative of the estate under A.R.S. 14-3203?

If your spouse died, you need an attorney to help you.

This can be confusing for you. We want to advocate for your rights as a spouse. Just give us a call at 602-443-4888.

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

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