Is Common Law Marriage Allowed in Arkansas? What You Should Know

Decoding Common Law Marriages

In essence, a common law marriage is a marriage that a couple asserts exists but that does not involve a certificate or any other official record. While it may seem odd for a couple to simply be "married" without a wedding ring or other official fixture, common law marriage has a long and rich history. Common law marriage can be traced back to ancient Rome. It was necessary because of the lack of formal marriage records in the area. The once practical concept evolved into something that had more to do with preserving wealth and breaking property up between heirs. Since then, common law marriage has been recognized by courts in various states.
This creates a big difference between a traditional marriage and common law marriage. In a traditional marriage , there is some kind of certificate or contract that proves the union of two people. There are witnesses to the marriage and a specific ceremony that can be proven in a court of law. With common law, no outside proof of marriage is needed. Identification for a couple seeking a common law marriage is all that is required.
While common law marriages can be hard to find, there are a handful of states and territories that do recognize them. Below are examples of some of the places that do honor a common law marriage:
As you can see, common law marriages are more prevalent on the western side of the U.S. than the eastern side. Some of the northern-most states like Montana, Colorado and Iowa have also recognized common law marriages. In fact, Iowa is one of the few states that explicitly has a statute about common law divorces.

The Lowdown on Arkansas Marriage Laws

Arkansas does not recognize common law marriages. In this state, a legal marriage must be approved by the state in a specific ceremony. The only circumstances under which a common law marriage will be recognized involve an individual who entered into such a relationship in another state and then relocated to Arkansas, so long as he or she was of legal age and legally competent under the laws of the original state.
What is required in Arkansas for a legal marriage? All that is required to make a marriage valid is for the parties to contract at least one of the following three ways:
Aside from the requirement of free consent, a person must be 18 years of age or older, unmarried and not too closely related to their intended to contract a valid marriage in Arkansas. A marriage is barred if either party:
There are two types of marriage licenses for recognition in Arkansas: the regular and the Limited License.
The standard marriage license must be obtained from a County clerk within the state. There is a three-day waiting period and within this time, both parties must have a physical examination to rule out any sexually transmissible diseases. Both parties must sign the certificate to be filed in the Clerk’s office. The standard license must be using immediately, but no later than 60 days. After that, it is no longer valid.
The limited license may be obtained from a court of competent jurisdiction or a County Clerk. Parties that have received pre-approval from their minister or religious leader may file this license. It is only valid for 60 days. Individuals cannot live together prior to the date listed on their limited license.

Does Arkansas Allow Common-Law Marriages?

Since 2001, Arkansas has taken a hard stance against common law marriage. At that time the state ruled that any common law marriages formed after 2001 would not be recognized.
In 2008, the Arkansas Court of Appeals in Parsons v. McCann, No. CA08-269, 2009 Ark. App. 307, specifically found that common law marriages are no longer valid under Arkansas law. In that opinion, the Court addressed the Arkansas circuit court’s findings in Parsons v. Parsons, et al., 2006 Ark. 105, 368 Ark 279, 244 S.W.3d 637 (2008). In Parsons v. Parsons, the circuit court determined that "marriage is an agreement between two persons, and it is an indivisible contract." Further, the court held "that in cases where two parties enter into a common law marriage [the Court] will look to the intent of the parties when entering into the marriage and their subsequent conduct to determine if the marriage meets the elements set out by the legislature."
In Parsons v. McCann, the appellee, George McCann, sought to enforce his claim of common law marriage as a defense to an action filed by the Trust of his deceased former spouse, Mary Parsons. The Court of Appeals rejected the appellant’s claim, specifically noting that the 2008 Parsons decision had the effect of "abolishing" common law marriage in Arkansas.
This decision also equated the 2005 Amendment to the Arkansas Constitution, § 28, with the repeal of common law marriage. This amendment enacted Arkansas Code Annotated § 9-11-109 which states that "a marriage between a man and a woman is the only legal domestic relationship recognized in Arkansas." The court held that this amendment abolished the common law marriage doctrine.
A common law marriage is one in which the parties live together and hold themselves out to others as being married.
Important Legal Points: Common law marriages are generally recognized for the following purposes: A common law marriage is not considered in the settlement of the following:

What Common Law Marriage Means for Couples in Arkansas

Recognizing a wide range of potential complications, Arkansas family law attorneys generally recommend that couples who believe they are married under common law seek to formalize their marriage by traditional means. Common law marriages in Arkansas do not carry all of the same benefits and protections of marriages created by statutory means.
While common law marriage is valid in Arkansas, it creates a number of unclear legal issues, which could easily lead to costly mistakes. For example, if a couple in a common law marriage buys or sells real estate or enters into a contract for business purposes, it is unclear exactly how those actions might hold up in court later. In general, common law marriages lack the written documentation which can help prove a legal claim.
In addition to creating uncertainty, common law marriages in Arkansas also require meetings of criteria not typically present in formal marriage contracts. For example, in order to qualify as husband-and-wife through common law, a couple must have voluntarily moved in together and lived together as a couple, intending to be legally married.
In the absence of certain protections, common law couples in Arkansas could easily encounter legal pitfalls when dividing property and debts. In the event of a divorce-like scenario, married couples often turn to local courts to divide assets based on equitable distribution.
Without clear records, distinguishing ownership of conjugal property from separate property can be very difficult. In addition, unless couples are able to correctly cite a legal marriage date with appropriate documentation, they could end up owing much higher amounts of spousal support than necessary.
While many common law couples in Arkansas choose to seek formal recognition of their legal union, others may not yet be ready to take that step. In such cases, couples should consider the potential problems associated with dissolution of a common law marriage. In short, it is important for common law couples to remember that Arkansas does not have a "trial separation" period to help establish the end of a common law marriage.

What About Common Law Marriages from States that Recognize Them?

As noted above, a common law marriage will not be established after 1997 in Arkansas. However, the full faith and credit clause of the Constitution of the United States requires that Arkansas recognize the validity of a common law marriage legally established in another state or territory .
If you or your spouse were considered to be married by reason of common law in a jurisdiction that recognized common law marriages, then Arkansas will recognize your marriage if your spouse: (1) entered into a marriage with you that was considered to have occurred at the time of the common law marriage; (2) incurred various "marital debts" that were incurred during the common law marriage; and (3) acquired real estate held as tenants by the entirety, which is recognized as a property interest reserved for spouses.
When analyzing whether a common law marriage exists, it is often advantageous to the spouse seeking to enforce the rights encompassed by the marriage if that spouse can meet the elements of a marriage set forth in Jones v. Jones.

What Unmarried Couples in Arkansas Can Do to Protect Themselves

While Arkansas does not recognize common law marriage, that does not mean that unmarried partners are left without any options. For couples looking to protect their rights, there are other legal arrangements available in Arkansas. One of those options is a domestic partnership. Domestic partnerships do not confer the same rights and obligations as marriages, but they are another way to ensure that your partner is protected in the case of a health emergency or death. A domestic partnership can also give you the right to make medical decisions for your partner if they are unable to do so, and can even give you some standing to assert healthcare directives or other legally binding wishes if your partner has made them. In essence, a domestic partnership can broaden your family circle to include the people you truly consider family.
An unmarried couple may also jointly draft a cohabitation agreement, which can decide things like property division or provide terms for living arrangements in the event of a break-up. Cohabitation agreements can also be used to determine the care and custody of minor children in the event two parents separate or divorce, even when the law does not recognize their relationship as having been a legal marriage. Cohabitation agreements are not as legally binding as marital agreements, and they may be contested in court if one partner feels that the agreement was unfair or entered into under duress.

A Wrap-Up to Arkansas’ Stance on Relationships

In conclusion, the big question of whether or not you have a common-law marriage in Arkansas will depend on the circumstances around your relationship. Make sure you read through the requirements and the statements made throughout this blog carefully before coming to a conclusion about your own relationship. As this blog outlines, Arkansas does not recognize common law marriages if the cohabitation and holding out occur after Jan. 1, 2010 (dates for 2010 may be different for you depending on when the county records were updated) . That means that if you went through a separation process, even if your ex-spouse still holds out as your spouse on social media, you cannot enter into a common law marriage with anyone else unless you officially divorce your first spouse and remove all signs of your first marriage from your personal life. It is not enough to simply think that your first marriage has ended. You, or the person on the other side of the legal action, must come to a court of law and file for divorce in order to make the divorce legally binding. Going through a divorce takes time, but it may be the only way to protect yourself, your new spouse and your new family from the effects of a common law marriage.