Cultural Insights: Understanding Marriage Traditions Beyond Common Law in Arizona

Common law marriage. The phrase evokes questions of legitimacy, of paternity, of moral legitimacy and inept behavior. It raises images of back-woods moonshiners who’ve “shacked up” illegally, or of city folk who’ve been together for decades but never formalized their union. Common law marriage raises questions of whether a relationship is legal, whether it was ever, or will ever be, legal, and of what, exactly, makes a marriage legal. And as always, there are extenuating cultural issues lining the perimeter of these questions, providing the arguments with historical context that invoke the values of every nearby ancestor.

So what about common law marriage in Arizona?

According to the law, “common law marriage” is a legal union in which two people live together in a long-term relationship that is characterized by their intent to be married, without ever having had a traditional wedding ceremony. This definition is reproduced all over the internet, and all over the courts. In fact, by some definitions, common law marriages don’t exist at all. Instead, it’s a matter of whether courts recognize a marriage that never followed the ritual of a formal ceremony. In Arizona, courts actively refuse to recognize common law marriages, and instead only recognize legal unions based on a formal ceremony or a solemnization. (That is, again, according to court documents, and largely because courts avoid all common law unions as a matter of paternity issues; courts are much more comfortable with paper trails and defined financial roles.) But this does not mean common law unions are not legal, it just means that, at least in Arizona, there is no single source for the information required to make decisions about them.

What’s interesting though, is how society continues to make sense of a legal definition that defines 51% of its primary members’ relationships while rejecting 49% of the same. This ‘rejecting’ also applies to the values of those relationships, proving that legal, cultural, and social definitions of marriage are often distinct, and sometimes at odds. What is more interesting, is how this social and cultural opposition applies to Indigenous groups.

So is Arizona a common law marriage state? Is there such a thing? If you are a member of the Waitaha, you would answer this question in a complicated way, but if you spent every day in Arizona you’d be a little confused because the waitaha definition of marriage doesn’t jive with what the majority in Arizona are experiencing.

For the Waitaha people, marriage is not union, but rather a family. Members of the Waitaha believe that shared journeys, namely, journeys that result in peaceful existence, are the relationships that are truly meaningful, and therefore, the bonds that are most sacred. In other words, marriage – what happens when two people, regardless of sex, value and acknowledge the potential of, peace – is the union that is most sacrosanct, and therefore, the union and relationship that is most legitimate and worthy of recognition.

Now, some may argue that legal legitimacy relates to the history behind it, and that there are enough legal injustices out there to qualify the Waitaha’s relationship definition as an injustice to those who have never met the Waitaha people, but who know quite well that they have been legally bound to a man for 30 years and consider themselves married. Therefore, the legal definition of marriage clearly has some influence on the Waitaha’s understanding of the concept.

The Waitaha people, however, approached marriage from a more ephemeral place than most. Native people are known for word of mouth narratives and oral histories, so it’s not surprising that this experience of relationship was passed down from generation to generation, and survived in a similar form to what it was before…that is, a monogamous relationship involving respect and peace. In addition, the Waitaha history did not include the social hegemony of the modern Western culture, which holds individual monogamous relationships on a pedestal and condemns polygamy and other forms of unions. Instead, the Waitaha honored the things that kept them peaceful, and considered that to be a priority.

As such, we can make sense of a relationship that a lot of people don’t really understand – that is, common law marriage. After all, even though most people choose to go through the process of having a wedding ceremony, those who do not usually see their relationship as any less worthy of respect. And, in fact, many think that the formalization of a relationship is taboo, and would rather just live in peace with their parties of choice.

That said, as the history of the Waitaha people shows us, while some consider this kind of relationship to be a blessing of God, others think that it is a forbidden ritual, and therefore, it is absolutely a you-do-you situation.