Arizona Divorce: Marriage, Common Law Marriage, and Covenant Marriage
Marriage in Arizona
Marriage is a contractual relationship. The laws for marriage vary from one state to another. Arizona law, for example, prohibits marriage between certain blood relations (between parents and children, including grandparents and grandchildren of every degree; between half- or whole-blood brothers and sisters; between uncles and nieces or aunts and nephews; and between first cousins — unless the cousins are sixty-five years of age or older or upon approval of any superior court judge in the state if proof has been presented to the judge that one of the cousins is unable to reproduce). Also, those less than eighteen years of age can only marry with the consent of their parent or guardian, and marriage of anyone less than sixteen years of age requires the consent of the parent or guardian plus the approval of any superior court judge in the state.
Further, Arizona Revised Statute (ARS) 25-111 lists requirements for a legal marriage in the state [www.azleg.gov]:
A. A marriage shall not be contracted by agreement without a marriage ceremony.
B. A marriage contracted within this state is not valid unless all of the following occur:
1. A license is issued as provided in this title.
2. The marriage is solemnized by a person authorized by law to solemnize marriages or by a person purporting to act in such capacity and believed in good faith by at least one of the parties to be so authorized.
3. The marriage is solemnized before the expiration of the marriage license.
The process for divorce in Arizona has been extensively described elsewhere on this site. Check our blog for details.
Does Arizona Recognize Common Law Marriage?
The requirements of Arizona law preclude common law marriage, which is not solemnized in a ceremony and involves no license. Thus, common law marriages are not recognized by the state of Arizona. Regardless of how long a couple lives together or what property they own together, in Arizona a couple is not married unless they obtain a license and have a ceremony in accordance with ARS 25-111.
Common law marriages can only be treated as valid marriages in Arizona if they occurred in another state that recognizes them. ARS 25-112 states that “Marriages valid by the laws of the place where contracted are valid in this state” (except those that are void, such as those between prohibited blood relations).
In 1998, the Arizona State Legislature created an additional type of marriage called “covenant marriage.” The covenant marriage differs both in the steps necessary to get married and the reasons a legal separation or divorce may be granted by the court.
To enter into a covenant marriage, a couple first must have counseling from a member of the clergy or a marriage counselor. In this premarital counseling, the couple must be advised that a covenant marriage is a commitment for life and about the limited legal reasons available for ending such a marriage.
Then, when applying for a license to be married, both members of the couple must show their intention to enter into a covenant marriage by signing a special statement (or “declaration”) on the application form. In accordance with ARS 25-901, the declaration must include the following written statement:
A Covenant Marriage
We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.
With full knowledge of what this commitment means, we do declare that our marriage will be bound by Arizona law on covenant marriages and we promise to love, honor and care for one another as husband and wife for the rest of our lives.
Covenant Marriage: Divorce
While divorce of a non-covenant marriage requires only a finding, as declared by either spouse, that the marriage is irretrievably broken, the dissolution (or divorce) of a covenant marriage can only occur if the court finds that any of the following have occurred, per ARS 25-903 (“petitioner” refers to the spouse who files for divorce, while “respondent” refers to the other spouse):
1. The respondent spouse has committed adultery.
2. The respondent spouse has committed a felony and has been sentenced to death or imprisonment in any federal, state, county or municipal correctional facility.
3. The respondent spouse has abandoned the matrimonial domicile for at least one year before the petitioner filed for dissolution of marriage and refuses to return. A party may file a petition based on this ground by alleging that the respondent spouse has left the matrimonial domicile and is expected to remain absent for the required period. If the respondent spouse has not abandoned the matrimonial domicile for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on abandonment, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.
4. The respondent spouse has physically or sexually abused the spouse seeking the dissolution of marriage, a child, a relative of either spouse permanently living in the matrimonial domicile or has committed domestic violence as defined in section 13-3601 or emotional abuse.
5. The spouses have been living separate and apart continuously without reconciliation for at least two years before the petitioner filed for dissolution of marriage. A party may file a petition based on this ground by alleging that it is expected that the parties will be living separate and apart for the required period. If the parties have not been separated for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on separation, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.
6. The spouses have been living separate and apart continuously without reconciliation for at least one year from the date the decree of legal separation was entered.
7. The respondent spouse has habitually abused drugs or alcohol.
8. The husband and wife both agree to a dissolution of marriage.
The grounds for legal separation of a covenant marriage include numbers 1-5 and 7 above, plus:
6. The respondent spouse’s habitual intemperance or ill treatment of the other spouse is of such a nature as to render their living together insupportable.
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