The most common misconceptions about common law marriage in Iowa are (1) living together for a certain period of time (typically seven years) automatically creates a common law marriage and (2) there is such a thing as a “common law divorce” that is distinct from a legal divorce.
The History of Common Law Marriage
Normally, there are two legal requirements for the creation of a marriage: (1) the issuance of a marriage license by a local jurisdiction, and (2) a ceremony in which an official (typically a religious authority such as a pastor, but sometimes a local magistrate) declares the couple “husband and wife.” In recent years, same-sex marriages have also been permitted.
Common-law marriage originated long ago, when travel was difficult and dangerous, and when local officials had trouble accessing remote communities. Since there were more people living in remote communities (mountain towns, for example) than there were public officials able to reach these people, common law marriage was permitted. With the advent of modern communications, common law marriage is fading out. However, common law marriage is still recognized in Iowa.
The Elements of a Common Law Marriage
A party asserting the existence of a common-law marriage must prove the following three elements to establish it:
- A present intent and agreement to be married existed during the relationship;
- The couple continuously cohabitated as spouses; and
- The couple held themselves out to the public as husband and wife.
Present intent and agreement to be married
The couple must consider themselves to be husband and wife. That means both parties, not just one of them. Although a written agreement is not a formal requirement, some legal scholars recommend that common-law couples sign and date a statement stating whether or not they intend to be married.
Although a written agreement is no guarantee that a court will find a common-law marriage exists, it does increase the odds that a court will agree that a common-law marriage has been created.
Living together is an absolute necessity for proving a common-law marriage. However, there is no specific time that a couple must live together to establish a common-law marriage. Obviously, two weeks would not be enough time, and almost as obviously, seven years would be enough time if the other factors necessary to prove a common-law marriage are present. Between these two extremes, however, there is no precise number that can be applied.
The cohabitation must be continuous
Cohabitation must be continuous to establish a common-law marriage. It cannot take place only on weekends, for example, even if one party works in another city. This requirement is one way in which common law marriage is distinguished from statutory marriage.
General and substantial declaration that the parties are husband and wife
The couple must hold out to the public that they are husband and wife – “secret marriages” will not be recognized at the common law level. Some of the ways this element can be satisfied include:
- The couple lives together and has established a conjugal relationship. A “conjugal relationship” means a sexual relationship, although, for obvious reasons, the means of proving this are limited without an unconstitutional violation of the couple’s privacy rights. Living together to save money on rent cannot establish a common-law marriage. Additionally, it is still an open legal question whether common-law gay marriage is permitted in Iowa.
- The couple lives as a married couple does by, for example, referring to each other as “husband” or “wife”; wearing wedding rings; sharing the same surname; and raising children together.
- The couple files joint tax returns.
- The couple maintains a joint bank account.
- The couples name each other as beneficiaries on each other’s insurance policies and/or retirement plans.
Standard of Proof
The standard of proof (or, as lawyers like to refer to it, the “standard of review”) is the amount of evidence you need to establish a proposition – in this case, the proposition that a couple is bound together in a common-law marriage. The standard of review for a criminal conviction, for example, is “beyond a reasonable doubt,” while the standard needed to win a civil lawsuit is a “preponderance of the evidence” (approximately 51 percent).
In the case of common law marriage, the standard of proof is “clear, consistent, and convincing evidence.” This is a higher standard of proof than that which is necessary to win a civil lawsuit, but a lower standard of proof than the “beyond a reasonable doubt” standard necessary to secure a criminal conviction. Courts generally do not like common law marriage claims, and they will scrutinize them very carefully.
“Common Law Divorce”
Strictly speaking, there is no such thing as a “common law divorce.” When a couple claiming to be bound by a common-law marriage seeks a divorce, two possibilities exist:
- The judge finds that a common-law marriage has been created, and institutes the same type of divorce proceedings that are necessary to dissolve a statutory (ordinary) marriage. This is one of the dangers of common law marriage – you don’t know for sure whether you are legally married until you seek a divorce.
- The judge decides that your relationship does not add up to a common-law marriage. This does not end matters, however, especially if you have children that are the product of your relationship. Child custody and child support issues must still be resolved.
- Without a common-law marriage, a statutory marriage, or a written agreement specifying the terms of a breakup, the equitable division principle does not apply – neither does alimony – and no “divorce” takes place. With the exception of the treatment of children born during the relationship, the end result resembles the breakup of a girlfriend and boyfriend. The property, for example, is not necessarily divided equally. The house may go to whoever’s name is on the title, especially if the same person paid the mortgage payments.
- The “best interests of the child” standard applies even to children born to parents who fail to establish a common-law marriage, just as it does to couples who never claimed to be married in the first place. That doesn’t necessarily mean that a man will be held responsible for the financial support of a child born during the relationship of which he is not the father. It might mean, however, that he will have to prove that he is not the father.
When in Doubt, Call 303 Legal, P.C.
If you are wondering whether you are legally married, or if you and/or your partner are considering going your separate ways and you are wondering what the implications of that will be, contact 303 Legal, P.C., ASAP for a consultation. You can contact us online, call our office directly, or visit our office in Cedar Rapids. We look forward to hearing from you!