Common Law Marriage in Arizona: What You Need to Know
Understand how Arizona handles non-marital relationships, legal recognition, and rights for cohabiting partners across various legal contexts.
Many couples in Arizona live together for years without formally marrying, sometimes assuming their relationship carries the same legal weight as a traditional marriage. This assumption can lead to complications regarding property, inheritance, or separation rights.
Understanding how Arizona law treats long-term cohabitation without a marriage license is crucial for protecting individual interests and avoiding misunderstandings.
Does the State Recognize It
Arizona law does not permit the formation of common law marriages within its borders. Living together, regardless of the duration or the couple’s intent, does not create a legal marriage in the state without meeting formal requirements.
To marry legally in Arizona, couples must obtain a marriage license and have the marriage solemnized, according to state statutes (specifically, Arizona Revised Statutes Title 25, Chapter 1).1Arizona State Legislature. ARS 25-111 Requirement of License and Solemnization Solemnization involves a formal ceremony conducted by an authorized individual, such as a judge or clergy member, before the license expires and with at least two witnesses present. The common belief that living together for a set period, like seven years, creates a marriage is incorrect under Arizona law, which requires these formal steps.
Out-of-State Legally Formed Unions
While Arizona prohibits forming common law marriages within the state, it generally recognizes marriages, including common law marriages, that were legally established in other jurisdictions. This principle, often called comity, is reflected in Arizona law (Arizona Revised Statutes 25-112), which states that marriages valid where contracted are typically valid in Arizona.2Arizona State Legislature. ARS 25-112 Marriages Contracted in Another State; Validity
If a couple formed a valid common law marriage according to the laws of a state that permits it (such as Texas or Colorado) before moving to Arizona, their marriage will usually be treated as legal in Arizona. The critical factor is the validity of the marriage in the state where it was formed. However, Arizona law makes an exception for marriages contracted elsewhere that would be prohibited in Arizona, such as those between close relatives.
Property and Inheritance Issues
Because Arizona does not recognize common law marriages formed within the state, the state’s community property laws do not automatically apply to unmarried cohabiting couples. Under Arizona’s community property system (Arizona Revised Statutes 25-211), assets acquired by either spouse during a legal marriage generally belong equally to both.3Arizona State Legislature. ARS 25-211 Community Property
For unmarried partners in Arizona, assets acquired during cohabitation are typically treated as separate property, owned by the person whose name is on the title or who made the purchase. If partners buy property together, the way it is titled is important. Holding property as “joint tenants with right of survivorship” allows the surviving partner to inherit the deceased partner’s share automatically. If held as “tenants in common,” each partner owns a distinct share that passes according to their will or state intestacy laws upon death, not automatically to the surviving partner.
This difference significantly affects inheritance. Arizona’s intestacy laws (Arizona Revised Statutes Title 14, Chapter 2), which govern asset distribution when someone dies without a will, prioritize a surviving spouse and other relatives.4Arizona State Legislature. ARS 14-2101 Intestate Estate (Start of Intestacy Laws) An unmarried partner is not considered an heir under these laws. Without a will specifically naming the surviving partner, they generally have no legal claim to the deceased partner’s separate property or their share of property held as tenants in common. The assets would pass to the deceased’s legal heirs, potentially leaving the surviving partner with nothing.
Enforceable Agreements in Cohabitation
Unmarried couples living together in Arizona can create legally binding contracts, often called cohabitation or partnership agreements, to manage their financial affairs. These agreements allow partners to define terms regarding property and finances, providing a legal framework outside of marriage.
Arizona courts recognize the validity of such agreements if they meet standard contract requirements. The Arizona Supreme Court case Cook v. Cook (1984) established that agreements between unmarried partners concerning earnings and property are enforceable if supported by valid consideration (something of value exchanged) and not based solely on sexual services.5Justia Law. Cook v. Cook, 139 Ariz. 573 (1984) Arizona Supreme Court Decision The court focused on the existence of a valid agreement and proper consideration, upholding contracts based on the parties’ intentions.
To be enforceable, these agreements generally require mutual consent, lawful subject matter, and consideration. Written agreements are strongly recommended for clarity and enforceability, especially for significant assets. These contracts can specify how income and assets acquired during the relationship are treated, how jointly owned property is titled, and how debts are allocated, allowing couples to establish clear financial expectations under contract law.
Court Considerations Upon Separation
When unmarried couples in Arizona separate, the legal process differs from divorce. The state’s dissolution of marriage laws, including community property rules, do not apply because common law marriage formed within Arizona is not recognized. There is no automatic presumption that assets acquired during the relationship should be divided equally. Property ownership typically follows legal title.
Disputes over property between separating unmarried partners are usually handled in civil court, not family court (unless partitioning jointly titled real estate is involved, requiring a specific civil action under Arizona Revised Statutes 12-1211).6Arizona State Legislature. ARS 12-1211 Jurisdiction; Partition of Personal and Real Property; Venue The court presumes each partner owns their separate property. A partner seeking a share of property titled in the other’s name must prove an agreement or understanding existed to share it, or that denying their claim would be unjust.
Courts may use equitable remedies like unjust enrichment or imposing a trust to ensure fairness, even without a written agreement. Unjust enrichment might apply if one partner’s contributions significantly increased the value of an asset held by the other, making it unfair for the titled partner to retain the full benefit without compensation. As recognized in cases like Carroll v. Lee (1986), contributions, including non-monetary ones, could support a claim if an agreement or understanding to pool resources existed.7Justia Law. Carroll v. Lee, 148 Ariz. 10 (1986) Arizona Supreme Court Decision Proving such claims requires evidence of the contribution and resulting unfairness.
Regarding children, the parents’ marital status does not affect court decisions on legal decision-making (custody) and parenting time. These issues fall under Arizona laws governing paternity (Arizona Revised Statutes Title 25, Chapter 6) and child custody (Arizona Revised Statutes Title 25, Chapter 4).8Arizona State Legislature. ARS 25-801 Petition; Process; Warrant (Start of Paternity Laws)9Arizona State Legislature. ARS 25-401 Definitions (Start of Child Custody Laws) If paternity isn’t legally established, a paternity action may be needed. Once established, the court determines custody and parenting time based solely on the child’s best interests, using statutory factors (Arizona Revised Statutes 25-403), aiming for significant time with both parents, without gender bias.10Arizona State Legislature. ARS 25-403 Legal Decision-Making; Parenting Time; Best Interests of Child
