Everyone understands the concept of marriage, it is a construct we have known since we were young. Common law marriage and covenant marriages are two different, and less used types, of marriage that we created to serve particular needs of society.
Common Law Marriage
Only a Few States Recognize Common Law Marriage.
The concept of common law marriage arose in the middle ages when weather and poor roads made it difficult for priests to travel to rural areas to conduct marriage ceremonies. In those cases, English law allowed couples to establish a marriage by “common law.” Today, the practical reasons for common law marriage are long gone, and the majority of states in the U.S. have abolished the practice. The remaining states recognizing common law marriage are:
District of Columbia
Georgia (only if created before 1/01/97)
Idaho (only if created before 1/01/96)
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma (legal conflict on whether those created after 11/01/98 are recognized)
Pennsylvania (if created before 1/01/05)
As you can see from the list, only 10 states continue to permit the establishment of new common law marriages. Five states are phasing it out, and New Hampshire recognizes it only in regard to inheritance.
What is common law marriage? Generally, it is a contract made between a man and a woman who declare themselves to be married and who act as a married couple thereafter. Same sex common law marriage is largely unrecognized. Over the years, myths have arisen about common law marriage, most of which are not true. People believe if they live together for 5 or 7 years or some other magic number, they have established a common law marriage. That isn’t true. Many believe that if a couple in a common law marriage divorce, the property will be automatically split 50/50. That isn’t true either. State laws on common law marriage are much more complex than that.
In most states that recognize the concept of common law marriage, there are multiple requirements to be met. Those requirements vary from state to state, but, generally, couples must hold themselves out to the public as being married by using the same last name and filing joint tax returns. Joint bank accounts also provide evidence of an intent to be “married.” Couples who are “married” by common law must live by the same rules as traditional married couples. If they split apart, the couple will need to go to court to dissolve the marriage using the same divorce laws as any other couple.
Living day to day is not a problem for most couples, but death or divorce can create devastating complications. In divorce, the parties must prove that there is a legitimate marriage. Often, one spouse benefits from denying the marriage and claiming that property acquired during the couple’s time together is sole and separate property. In those instances, it falls on the other spouse to prove the existence and date of the marriage in court. Many courts will award property to the person whose name is on the deed or title without consideration to the marriage claim. Problems also arise when one of the spouses dies. Unless there is a Will, the surviving spouse will need to prove the existence of the marriage to inherit. Even if there is a Will leaving marital property to the surviving spouse, relatives may swoop in to contest the Will. Once again, the surviving spouse will need to prove the existence of the marriage to the court. Without strong evidence to support her claim, the spouse can lose everything the couple acquired together.
Arizona Marriage Law
There is no common law marriage in Arizona. The requirements for a legal marriage are set out in the Arizona Statutes. A.R.S. § 25-111 lays out what a couple needs to create a legal marriage in Arizona. The statute clearly states: “A marriage shall not be contracted by agreement without a marriage ceremony.” In plain language, no common law marriage can be created in Arizona. The law requires a license and a ceremony performed before the expiration of the marriage license by an authorized person.
However, Arizona will recognize common law marriages contracted by residents of a common law state who have fulfilled all the requirements for a recognized marriage in that state. A.R.S. § 25-112 states that marriages contracted outside Arizona that are deemed valid in the state where contracted will be recognized as valid in Arizona. In other words, if a couple lived in Utah and entered into a common law marriage there, and Utah recognized them as being a valid married couple, the marriage would be recognized as valid in Arizona. Another caveat in the law is that the statute may not be used to evade Arizona law. For example: a couple who live in Arizona can’t go to Utah or Texas for a week, declare themselves to be married under common law, and then return to Arizona and expect Arizona to treat them as a married couple. They must have been residents of the common law state at the time the marriage was contracted.
As you can see, common law marriage is not a simple matter of living together for a long time. Common law marriages are disfavored by the law, and are fraught with legal issues that may be difficult to overcome. If you want to be considered a married couple, the best option is to apply for a license and have a ceremony.
Arizona Does Recognize Covenant Marriage
Covenant marriage came into being as a result of some people believing that divorce was too easy to obtain. They believed a more binding form of marriage would slow the rate of divorce in Arizona and create more stable marriages. The covenant marriage statutes A.R.S. §§ 25-901 through 25-906 were enacted on August 21, 1998. Covenant marriage did not replace existing marriage laws. Rather, it is an additional form of marriage offered by the state for those couples who, for religious or cultural reasons, want a more binding commitment.
A.R.S. § 25-901 sets out the requirements for a covenant marriage. The couple must have the legal capacity to marry; the marriage license is recorded along with the required declaration. The covenant declaration must contain a statement of intent that contains the specific language set out in the statute. There must also be a signed affidavit by the parties stating they have received premarital counseling. The affidavit must state that the parties have been counseled on the seriousness of marriage, on marriage being a life-long commitment, and on the difficulty in terminating a covenant marriage. The signatures of the parties must be witnessed by a court clerk, and a notarized statement by the clergy or counselor handling the counseling must be submitted with the application for the marriage license.
To dissolve a traditional marriage in Arizona, one of the parties must declare the marriage to be “irretrievably broken.” It is a no-fault state, and no blame is assigned to either divorcing party. Dissolving a covenant marriage is more difficult. Covenant marriage dissolution law harkens back to the days when parties were required to have “grounds” for divorce. These are the grounds set out in the statute: adultery, abandonment for at least a year, physical or sexual abuse, living separately without conciliation for 2 years, living apart for one year following a decree of legal separation, drug or alcohol abuse, and finally, both parties agreeing to dissolve the marriage. This means that if there are no grounds like abuse, drugs or adultery and the other spouse won’t move out or agree to divorce, you can be stuck in an unwanted marriage for a long time. The counseling requirement and the onerous dissolution statute have not endeared covenant marriage to the general public. Today, covenant marriage accounts for only ¼ of 1% of the marriages solemnized in Arizona.
Kallen, Candance. “What is Common Law Marriage?” My AZ Lawyers, 7 Jan. 2015, www.myazlawyers.com/family-law/common-law-marriage Accessed 25 Mar. 2017.
Stritof, Sheri. “Common Law Marriage in Oklahoma.” The Spruce, 1 Feb. 2017, www.thespruce.com/common-law-marriage-in-oklahoma-2302242Accessed 25 Mar. 2017.
Yamin-Garone, Mary S. “Fact or Fiction: Five Myths about Common Law Marriage.” Legalzoom, www.legalzoom.com/articles/fact-or-fiction-five-myths-about-common-law-marriage Accessed 25 Mar. 2017.
“Common Law Marriage and Covenant Marriage.” AZ Statewide Paralegal, 16 Dec. 2014, www.azstatewideparalegal.com/uncategorized/arizona-divorce-marriage-common-law-marriage-covenant-marriage Accessed 25 Mar. 2017.
“Covenant Marriages in Arizona.” Arizona Supreme Court, 2006, www.azcourts.gov/Portals/31/Other%20DR/covenant.pdf.
Arizona State Legistlature, www.azleg.gov/arstitle Accessed 25 Mar. 2017.