Common Law Marriage Defined
A common law marriage is typically defined as an agreement between two parties to become husband and wife in the future that is or is not later solemnized (which basically means a legal marriage ceremony is or is not performed after the agreement is made). In other words , a common law marriage is established if two persons mutually agree to be married and then cohabit or live together as spouses. This means that if two persons agree to be married and then move in together as husband and wife it is probably a common law marriage. If the agreement to be married is later solemnized it will be a ceremonial marriage. In Arkansas, you can obtain a marriage license and have a ceremony to get a ceremonial marriage before you are married.
Arkansas Marriage Laws: An Overview
Arkansas does not recognize common law marriage. Sections 1-101 and 1-104 of the Arkansas Code Annotated specifically define the terms "husband and wife" and "married person" to only mean persons who have been duly married according to the laws of the state. Section 9-10-204 of the Arkansas Code dictates that a common law marriage established in another jurisdiction must be valid for that particular marriage if the marriage will now fall under the jurisdiction of the Arkansas courts and the courts have the option to divide property acquired during the term of the marriage. Section 9-10-205 provides that all rights, benefits, and privileges granted, provided, or recognized by the laws of Arkansas to a married person or spouse shall be granted to any persons who are married under the laws of a different than are extended the same rights, benefits, and privileges given to an Arkansas married couple.
A Brief History: Common Law Marriage in Arkansas
While some states have never recognized common law marriage, Arkansas has a history of acceptance. In 1800, the Territorial Assembly adopted the Doctrine of Rebuttable Consent, stating that "marriage is the voluntary consent of an adult man and woman who stagger into it only after years of passionate, sexual experience in which they employ a form of Adequate Birth Control, until they decide to exchange promises in a religious or civil ceremony." The Territorial Assembly shifted from this legal position with the adoption of the first Arkansas Constitution in 1836, which provided, "Marriage is a subject with which this government has nothing to do. The laws on this subject are altogether left to the physicians of the country and the decided nations of Europe."
The validity associated with common law marriage in Arkansas came from an 1861 Arkansas Supreme Court opinion, Jones v. Jones, where the Court held a common law marriage totally valid in Arkansas. This opinion created the common law implied contract of marriage and was accepted into Arkansas law for more than a century. Chief Justice Nimrod H. P. Smith of the Arkansas Supreme Court declared "it is not the province of this court . . . to make, change or alter the laws which have been enacted by the people . . . [but] to expound them, and upon proper occasions to declare its opinion as to their construction."
In 1953, the Arkansas Supreme Court overruled Jones v. Jones and dismantled the common law marriage through an opinion in Crouch v. Crouch. The Court redefined the constitutional provision provided in the 1836 Constitution as "a rejection of state involvement in private domestic relationships and the parens patriae role of the state in the discretion of a juvenile court in deciding what is in the best interest of a minor . . . a refusal to involve the state in ‘the fogs of family life.’"
Legislatively, Arkansas did not adopt a statute regarding the matter until 1997. The statute states "a marriage contracted . . . in another state that is valid there shall be good and sufficient evidence in all the courts of Arkansas of the validity of the marriage." This does not mean, however, that contracts for marriage will be sufficient to create a marriage in Arkansas.
In addition, in Spencer v. Spencer, the Arkansas Supreme Court ruled that "the common-law marriage doctrine had no further vitality." At this point, Arkansas case law statutorily reverted back to the common law rule that at least one of the parties be free to marry for the marriage to be valid.
Common Law Marriage v. Other States: An Overview
Arkansas is relatively unique in its strict abolition of common law marriage in favor of statutorily-defined formal marriages. Some states retain a form of common law marriage and some do not.
According to the National Conference of State Legislatures, 9 states still recognize common law marriages, but only under certain conditions, such as when an individual meets the specific state law requirements before a certain date.
As of today, Alabama, Colorado, Iowa, Kansas, Montana, Nebraska, Texas, Utah, and Rhode Island are the 9 states that recognize common law marriage.
The different states have various requirements for the identification of a common law marriage, such as the required age of each party, the required period that parties must have lived together, the required intent, and the requirement of certificate or affidavit.
In Tennessee, for example, it is recognized only if there is proof that the persons have agreed they are married and that they have permanently and irreversibly assumed a marital relationship, but not with regard to individuals presently legally married to another.
Texas recognizes a common law marriage if the parties are over the age of 18, lived together in the state, and the woman is clearly identified as the spouse of the other person in a government document or identified in their joint ownership of property.
Texas also allows for ceremonial marriages without regard to the couple’s common law marriage if the parties hold out to the public that they are married.
Utah also has a strict standard before a common law marriage is recognized. The parties may enter into a marriage contract informally, but they have to have cohabitated for a period of time and hold themselves out as being married, and both agree that they were married.
Iowa requires cohabitation for a period of time, together with the intent to be married, the acquired property, the assumption of marital obligations, recognition as a family, and holding themselves out as married.
Each state has its own guidelines for courts, which could ultimately result in litigation to determine whether a couple can be determined to have entered into a common law marriage.
What This Means for Arkansas Couples
Couples who consider themselves "married" under a common law status will be surprised to find that, from a legal and financial perspective, Arkansas does not recognize them as such. Although these individuals may live together as spouses and hold themselves out as a married couple, all conventional avenues would lead outside the parentage of a legal marriage. For this reason, cohabitation couples should be aware of the implications their status can have on their legal rights in areas including property ownership, inheritance, and custody of minor children.
Regarding property rights, Arkansas has statutes that govern dower and curtesy interests for married persons – which generally provide protection and ultimately transferability to the surviving spouse of the deceased spouse’s property. However, because common law marriage is not recognized in Arkansas, no statutory protections exist pursuant to state law for unmarried couples who consider themselves married. In these situations, reliance on the doctrine of constructive trust (a judicial remedy that makes an individual who holds property for another person a trustee of that property) would be necessary to provide for the transfer of the decedent’s property to the surviving partner. To succeed in establishing a constructive trust, a party must show that: (1) a special confidential relationship existed between the parties; and (2) one party was unjustly enriched at the expense of the other party . The party seeking imposition of the constructive trust can meet the burden by demonstrating the existence of the relationship and the financial contribution made to marital assets. Additionally, the authority to create a constructive trust should fall within the probate court’s authority, as Arkansas law does not limit the nature of a probate court’s proceedings. However, such a remedy would likely require a more recent shared asset than would be possessed in other "marital assets" cases. The long and short of it is that unmarried couples should not defer creating a will if they want anything to pass to their partner should they die. Otherwise, state law would prevail and the property would go to relatives under Arkansas intestate succession laws. Though a common law marriage cannot be established between a couple in Arkansas, the same does not hold true for children born out of wedlock. Under the Uniform Parentage Act, parents are presumed to be married pursuant to Arkansas law if: (1) they were married at the time of birth of the child (presumed for 300 days after separation); (2) they were married subsequent to birth but before the child reaches age 18; (3) the husband’s paternity is concluded through genetic testing or admission of paternity; (4) a finding of paternity is made by the mother’s birthplace, such as in the event the birth mother has designated the husband as the child’s father; (5) the husband freely and openly holds the child out as his own; (6) paternity is acknowledged in writing.
Common Law Marriage Alternatives in Arkansas
In lieu of formal marriages, some couples may choose a domestic partnership or civil union in Arkansas. A domestic partnership in Arkansas is a legal or personal relationship between two individuals who chose to share their lives together and funciton in a similar fashion as a marriage by romantic and family components, and economic or personal considerations. Such relationships usually are created by filing a statement with the Secretary of State so that the relationship is recognized for the purposes of providing benefits of employment laws, medical leave, and pensions. Domestic partners are bound to one another in terms of rights, responsibilities, and economic opportunities such that they have the potential to dissolve the partnership if they are unable to terminate the agreement afte some period of time. Domestic partnerships will not be a substitute for spousal rights, such as tax benefits, unless they are estate planning contracts and documents executed in advance. Civil unions are similar to domestic partnerships but only provides benefits that do not extend to federal law. Similar to domestic partnerships, civil unions involve a sharing of lives and interests by two parties, but separate from civil marriages.
Insights and Expert Perspective
Experts in family law frequently address the nuances of common law marriage in Arkansas to help clarify its complex and often contentious legal landscape. For instance, Joshua Shackelford, a practicing attorney in family law, mentions in his blog that even though common law marriage is no longer formally recognized, other legal arrangements akin to common law marriage may be applicable, such as "Putative Spouse" status, which protects a spouse who innocently entered into a marriage believing it to be legal, or "Palimony" agreements that are made between unmarried cohabitants .
Professor Susan Hazeldean, who teaches Family Law at the University of Arkansas School of Law, points out in her legal articles that even though Arkansas no longer recognizes common law marriage, the State still acts as if it does in many instances, such as in the division of property during a divorce, or in situations where parties enter into a "common law marriage" in another State, since Arkansas will recognize that marriage if the parties are married at the time of divorce.