Common Law Marriage

Sometimes, I will get a phone call from a prospective client claiming he or she has a common law marriage, but without a firm grasp on what that really means. It is a common misconception that a couple must live together for a specific period of time before they are considered common law married, but under Iowa law, that is not how it is determined.

The most comprehensive discussion of Iowa common law marriage recently has been the case In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004), and therefore that is the case I am using to outline Iowa law on this topic.

At the outset, it is important to understand that Iowa law does not favor common law marriage. That means that the party asserting there was a common law marriage bears the burden, and such claims are "carefully scrutinized." So it is no easy feat to have a common law marriage declared. To establish a common law marriage, one must prove three elements: present intent and agreement to be married by both parties, continuous cohabitation, and a public declaration that the parties are married. 

Present Intent to be Married: This element reflects the contractual nature of marriage, requiring agreement by both parties, like any other contract. This agreement does not have to be express, meaning the parties do not have to discuss and decide to be married. Instead, it is usually sufficient for one party to intend to be married, and the other to act in such a way to indicate he or she agreed. Evidence of present intent to be married consists largely of the conduct of the parties and their reputation in the community as a married couple (if neighbors, teachers, etc. thought the couple was married). Please note that this is present intent to be married, not future intent. That is, if the couple was engaged to be married some time in the future, there is no common law marriage.

Continuous Cohabitation: Living together alone does not establish common law marriage, but is considered basic to establishing that a couple is married. There is no specific time that a couple must live together. It is an extension of proving the present intent to be married, so this factor will balance against other factors in each given case.

Public Declaration: The Iowa Supreme Court considers this to be the acid test for common law marriage. A couple must hold itself out as married to be common law married. Some inconsistent statements are allowed. In general, the Court will look for a substantial holding out to the public as married.

All of these elements are very fact-specific. That is, whether a specific couple is common law married is going to depend very much on the facts surrounding that specific couple. An attorney can help analyze the issues, but the final determination will have to be made by a judge.

Why would someone want to be established as common law married? It usually arises in one of two factual scenarios. First, one of the parties has died, and the other would like to recover under his or her estate as the spouse. Second, one party leaves the other party, and a party would like to have the property divided through a divorce rather than based on pure ownership. That is the most important thing to remember about common law marriage: once you are in one, it takes a divorce to get out of the marriage. Be careful what you ask for.