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Arkansas Common Law Marriage

What is Common-Law Marriage in Arkansas?

Common-law marriage is a legally binding union between cohabiting partners who did not obtain a marriage license or take part in a wedding ceremony. To enter a common-law marriage, the couple should have lived together for some time, be legally capable of entering a marriage, intend to be married, and hold themselves out to family and friends as married. The cohabitation requirement to create a common-law marriage varies between states.

A common-law marriage allows a couple to enjoy marital rights and have marital obligations without entering a formal wedding. Couples may prefer this arrangement for different reasons, including the avoidance of costs associated with a formal wedding. A spouse in a common-law marriage has access to the same rights available to formally married partners. Some of these rights include:

  • Spousal support rights
  • Insurance benefits
  • Tax deduction and exemptions
  • Child custody rights
  • Inheritance rights
  • Right to marital property if the marriage is dissolved
  • Jail, prison, and hospital visitation rights

Different states have varying requirements for the creation of common-law marriages. However, a common requirement is that the parties should cohabit for a while. In addition to this condition, spouses should also be legally free to marry, which means they must be 18 years or older and not be in any other marriage. Additionally, the spouses should intend to be married and hold themselves out to family and friends as a married couple.

While common-law spouses are entitled to the same rights as married couples, there are some disadvantages. For instance, there are often no official records of common-law marriages. Therefore, the existence of such a union may be difficult to prove. Downsides to this type of union include:

  • The spouse that alleges the existence of a common-law marriage has the burden of proving the marriage.
  • If the spouse fails to prove that the marriage exists, there will be no accessible marital rights.

Marriage in Arkansas

In 2018, Arkansas had a marriage rate of 8.9 marriages per 1,000 residents and a divorce rate of 4.1 divorces per 1,000 persons. According to a 2019 survey of residents 15 years old or older, 53% of the state’s male inhabitants were married, higher than 49% for women. The survey also revealed that 14% of women were divorced, compared to 12% for men.

Does Arkansas Recognize Common-Law Marriage?

Arkansas does not recognize common-law marriages created in the state. However, Arkansas validates common-law marriages in jurisdictions that recognize this type of union. This recognition is pursuant to the US Constitution’s Full Faith and Credit Clause, which requires each state to recognize public acts, records, and judicial proceedings of other states. Couples recognized as common-law spouses in Arkansas become entitled to the same marital rights as formal marriage spouses. However, couples have the option of cohabitation agreements to avoid formal or common-law marriages.

What is a Cohabitation Agreement in Arkansas?

A cohabitation agreement in Arkansas is an agreement that establishes the rights and duties of partners living together as a couple. Mere cohabitation does not entitle couples to any of the rights enjoyed by Arkansas married couples. However, some of those rights and duties can be assigned through a cohabitation agreement.

The couple may choose to pool their earnings and jointly or separately hold acquired property. Partners may also hold property as joint tenants or tenants in common. A person who cohabits with another in Arkansas is not considered an heir and does not have the right to make medical decisions in the way a spouse can. However, this right may be established through a cohabitation agreement and estate planning.

What are the Requirements for a Common-Law Marriage in Arkansas?

Common-law marriages cannot be formed within Arkansas. Therefore, there are no requirements for couples to enter common-law marriages in the state. However, common-law spouses from states that recognize the marriage may retain their status upon relocation to Arkansas. While requirements differ, most states expect the following:

  • The couple should not be close family
  • The spouses should be at least 18 years old
  • The spouses should not be in any other marriage
  • The couple should have cohabited for some time
  • The spouses should be capable of consenting to marriage

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

  • The full name of both spouses (include first, middle, and last names)
  • The date the marriage occurred (month, date and year)
  • The location where the marriage occurred (city and county)

How Many Years Do You Have to Live Together for Common-Law Marriage in Arkansas?

A couple cannot establish a common-law marriage in Arkansas no matter how long they live together. Arkansas only recognizes formal marriages where the couples received marriage licenses. States that recognize common-law marriages have varying periods for which the couple must cohabit before establishing a common-law marriage. Common-law marriages will only be recognized in Arkansas if the couple met that requirement in the state before their relocation.

What Does It Mean to Be Legally Free to Marry in Arkansas?

To be legally free to marry in Arkansas, a person must satisfy the conditions required to contract a formal marriage. Arkansas residents who are at least 18 years old may marry without parental consent. Younger persons who are at least 17 years old may get married with the consent of both parents. Partners who are legally free to marry should not be closely related and also not be in another marriage, common-law marriage, domestic partnership, or civil union.

What is an Informal Marriage in Arkansas?

An informal marriage is the name given to common-law marriages in Texas. Essentially, an informal marriage and a common-law marriage are the same. Informal marriages cannot be created in Arkansas. However, if properly created in Texas, the marriage would be valid if the couple relocates to Arkansas. Spouses in informal marriages are entitled to the same rights as spouses in formal marriages.

How Do You Prove Common-Law Marriage in Arkansas?

A spouse can prove a common-law marriage by providing evidence to show that the marriage was created. The evidence may be witness testimonies or records proving cohabitation and an intention to be married. Applicable documents may be required to enforce marriage rights or to obtain a share of the couple’s marital property after a divorce. The party that alleges the existence of a common-law marriage has the burden of proving it. This can be done by providing the following:

  • Records showing joint tenancy
  • Records showing joint ownership of property
  • Records showing that one party took the other’s surname
  • Records listing one party as the other’s spouse
  • Witness testimonies confirming that the parties held themselves out as husband and wife
  • Records showing that the partners operated a joint bank account
  • Records of joint tax returns
  • Records showing that the couple shared a residential address

How Do You Prove Common-Law Marriage in Arkansas After Death?

A common-law partner can use witness testimonies and other related records to prove the existence of a common-law marriage after the death of a spouse. Friends and family may testify that the couple cohabited for some time and regarded each other as husband and wife. To prove a marriage through records, the surviving spouse should show evidence that the parties cohabited and intended to be married. Documents that may serve this purpose include records of a joint bank account, birth certificates of children born of the union, records of jointly owned property, and records of joint tenancy. The marriage should originate from a state that recognizes common-law marriages, with the conditions in that state satisfied by the couple.

Do Common-Law Marriages Require a Divorce?

Arkansas common-law marriages cannot be terminated without a divorce. To initiate a divorce, one of the parties should have resided in Arkansas for up to 60 days before the filing. If the divorce is uncontested and parties agree on division of debt, property, and child custody, the divorce may be conducted in line with the partners’ agreement. Where partners cannot agree and the divorce is contested, the Court determines how the divorce would be contested. Arkansas Code provides the following grounds for divorce:

  • A party was impotent at the time of the marriage and is still impotent
  • A party is convicted of a felony
  • A party is a habitual drunkard
  • A party is guilty of cruel and barbarous behavior that endangers the life of another
  • Adultery
  • Insanity
  • Parties have lived separately for up to 18 months

Does a Common-Law Wife Have Rights in Arkansas?

A common-law wife in Arkansas has the same rights as a wife in a formal marriage. The union must be lawfully created in a state with applicable laws and should satisfy all the conditions in that state. Upon divorce, a common-law wife has the right to a share of the marital property, the right to make medical decisions, social security benefits, and all other rights applicable under a formal marriage.

Can a Common-Law Wife Collect Social Security in Arkansas?

A common-law wife in Arkansas can collect social security if the marriage was established in a state that recognizes such marriages. The wife would need to provide a statement from a blood relation and complete the Statement of Marital Relationship Form. The wife would also need to provide the following information about the marriage.

  • The month and year the spouses began cohabiting as a married couple.
  • The duration and locations the spouses have cohabitated.
  • The location where the marriage occurred.
  • Names of children born to the couple if any.
  • A list of family members, neighbors, or employers with knowledge of the marriage.
  • Former and current names if the partners changed their names.

Are Common-Law Wives Entitled to Half in Arkansas?

A common-law wife in Arkansas is entitled to half of the marital property under Arkansas law. However, the Court may award more or less than half of the property to the wife if it finds it equitable to do so. To do this, the Court would consider the following:

  • The duration of the marriage
  • Age, health, and status of both parties
  • Occupation of the parties
  • Amount and sources of income
  • Vocational skills
  • Employability
  • Liabilities and needs of each party
  • Contribution of each party to the acquisition and preservation of marital property, including homemaking contributions
  • The federal income tax consequence of the Court’s division of property

How Do You Get a Common-Law Marriage Affidavit in Arkansas?

Arkansas does not provide common-law marriage affidavits as common-law marriages cannot be created within the state. However, parties to common-law marriages can obtain affidavits in the states the marriages were formed. Different states have different processes for obtaining common-law marriage affidavits. However, the following are required:

  • The affidavit should state that the spouses were of legal age when they decided to be married.
  • The affidavit should include the date the parties decided to be married.
  • The affidavit should contain the location the parties decided to be married.
  • The affidavit should include previous marriages, civil unions, and domestic partnerships of both parties, with wedding and termination dates.

What is Considered Common-Law Marriage in Arkansas?

Arkansas law does not allow the creation of a common-law marriage. Only common-law couples relocating from states with supporting laws may be recognized in Arkansas. Although these couples can exercise the same rights as formally married couples, only formal marriages and cohabitation agreements may be established in Arkansas. Partners who wish to enter a formal marriage should first request a marriage license from any county clerk. After receiving the license, the partners may then solemnize their marriage.

Does the Federal Government Recognize Arkansas Common-Law Marriages?

The United States Federal Government does not recognize Arkansas common-law marriages and only validates common-law marriages created in states with applicable laws. These states include Kansas, Iowa, Rhode Island, New Hampshire, Colorado, South Carolina, Texas, Utah, and Montana. Common-law marriages created in Alabama, Georgia, Idaho, Pennsylvania, Oklahoma, and Ohio before a specific date are also recognized. A common-law marriage can grant the spouses some benefits, such as tax exemptions and immigration or obtaining permanent residency benefits.