A common law marriage is a marital union established without the formalities of a license or a ceremony. The legal standing of such a relationship depends entirely on the laws of each state. This article will explain the status of common law marriage in Arkansas, including whether one can be created within the state and how Arkansas law treats those formed elsewhere.
Arkansas’s Stance on In-State Common Law Marriage
Arkansas law does not permit the creation of common law marriages. For a marriage to be legally binding in the state, a couple must obtain a marriage license from a county clerk and have the union solemnized by an authorized individual. No matter how long a couple lives together or presents themselves as married, the relationship will not be legally recognized as a marriage if it was formed within Arkansas without meeting these requirements.
Recognition of Out-of-State Common Law Marriages
While Arkansas prohibits the formation of common law marriages locally, it does recognize them if they were validly established in a state that permits such unions. This recognition is based on the Full Faith and Credit Clause of the U.S. Constitution, which requires states to honor the laws of other states. If a couple meets the legal requirements for a common law marriage in a state like Oklahoma or Texas and then moves to Arkansas, Arkansas courts will treat their marriage as valid. Following the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, this recognition applies to all validly formed out-of-state marriages, regardless of gender.1Justia U.S. Supreme Court Center. Obergefell v. Hodges, 576 U.S. 644 (2015)
Elements to Establish Common Law Marriage in Other States
To have an out-of-state common law marriage recognized in Arkansas, the couple must have satisfied all requirements of the state where it was formed. While specifics vary, states permitting common law marriage require proof of three elements, which must have been met while the couple lived in that state.
The first element is a present and mutual agreement to be married, which is a current intent to be in a marital relationship, not a plan to marry later. The second is cohabitation, meaning the couple must live together as spouses. The third element is that the couple must “hold themselves out” to the public as married, for example, by using the same last name or referring to each other as “husband” or “wife” on official documents.
Legal Consequences of a Recognized Out-of-State Common Law Marriage in Arkansas
Once an Arkansas court recognizes an out-of-state common law marriage, the couple is afforded the same rights and responsibilities as any other legally married couple. If the relationship ends, they must obtain a formal divorce to dissolve the union, which includes the equitable division of marital property and may involve alimony and child support.2Justia Law. Arkansas Code § 9-12-315 – Division of Property – Definition3Justia Law. Arkansas Code § 9-12-312 – Alimony – Child Support A recognized spouse also has inheritance rights and is eligible for other benefits. These include:
- The ability to inherit from a deceased spouse’s estate.4Justia Law. Arkansas Code § 28-9-214 – Tables of Descents
- The right to claim a dower or curtesy interest.5Justia Law. Arkansas Code § 28-11-301 – Land Generally
- Eligibility for a spouse’s health insurance benefits
- The ability to claim Social Security survivor benefits
Proving an Out-of-State Common Law Marriage in Arkansas Courts
The person claiming a common law marriage exists carries the burden of proving it in an Arkansas court, which often occurs during divorce or probate proceedings.6Justia Law. Arkansas Code § 16-40-101 – Burden of Proof The court requires evidence showing the couple met the elements for a common law marriage in the state where it was formed. Evidence includes testimony from the couple, friends, and family from the originating state. Documentary evidence is also important, such as:
- Joint tax returns
- Shared bank account statements
- Property deeds or lease agreements bearing both names
- Insurance policies that list one another as a spouse