Does Iowa recognize common law marriage?
In Iowa, common law marriage or a marriage by habit and repute was recognized as legally sufficient to form a valid marriage. Up until 1980, it was unclear if Iowa would allow common law marriage for all future marriages. However, prior case law leaves no room for doubt – if you were married by common law in Iowa before January 1, 1980, or were a resident of a state that recognizes common law marriage and later moved to Iowa, then you were married. See In re Marriage of Claussen, 309 N.W.2d 432 (Iowa 1981).
However, in 1980 the legislature enacted Iowa Code § 595.1(1), which reads: "Civil marriage licenses may be issued only at the written request of and upon the payment of proper fees by both parties intending marriage . " The legislature’s intent was clear – and our Supreme Court later agreed – that if you are a resident of Iowa in 1980 or later, you must obtain a marriage license to be married. Therefore, for future marriages for residents of Iowa, in order to be legally married, you must be granted a marriage license by the court and then issued and file that license with the court. If you do not obtain a marriage license, you are not considered married.
In re marriage of Davis, 583 N.W.2d 609 (Iowa 1998). As such, the statutes do not apply to anyone who was lawfully married by common law in Iowa prior to 1980. Any marriages after 1980, residents of Iowa must apply for and be granted a marriage certificate before obtaining a marriage license. Iowa Code § 595.10. Civ. No. 10-187, 2011 WL 366738 (Iowa).
Requirements of common law marriage in Iowa
A common law marriage in Iowa, as with most states, is when a couple is not formally wed and the parties have lived together for a period of time. Iowa recognizes common law marriages, if the proper requirements are met.
The requirements for the recognition of a common law marriage in Iowa include cohabitation, mutual consent and public declaration as a married couple. However, cohabitation for this purpose means not only having a sexual component, but living together even if there are children or not. The parties must fully intend to be married to each other, and both must have an equal commitment to this idea. The two people are required to behave to those around them as though they are married.
While the state does not maintain a registry of common law marriages, the fact of a common law marriage will be considered as the type of evidence a court may accept proving the existence of a common law relationship. In addition to the three requirements, courts have found that the relationship may also require time, exclusivity and continuity.
What’s the difference between a common law marriage and a traditional marriage?
The most significant difference between a common law marriage and a traditional marriage in Iowa is that the person seeking a divorce from a common law marriage must prove that a common law marriage actually existed by establishing the elements of a common law marriage. Iowa applies the following three-prong test to determine whether a common law marriage exists:
- There is an actual and mutual consent by both parties to a present marriage;
- The parties must be legally competent to enter into a marriage (as opposed to a legal disability such as being a minor or being already married); and
- There must be a cohabitation by the parties and a holding out by them to the public as being a married couple.
Each of the above elements must be proven in order to establish the existence of a common law marriage, which must be proven by "clear and convincing" evidence. See In re Marriage of Walters, 710 N.W.2d 177 (Iowa 2006). This means that the party seeking a divorce from a common law marriage must overcome a high legal standard and provide convincing proof that a common law marriage actually existed.
In addition to the above noted legal requirements of a common law marriage, a common law spouse has the same legal rights that any other person has under the law. Pursuant to Iowa Code Section 598.1(5), a common law spouse is entitled to the same property and financial rights in post-marital cases as an "ordinary spouse" and has the same presumptions and evidentiary rules as ordinary spouses do. For example, Iowa recognizes a common law spouse’s claim for alimony and property division between the parties just as an "ordinary spouse" would have, provided that the common law spouse can establish that a common law marriage existed.
The most significant practical difference between a common law marriage and a traditional marriage appears in a legal context. However, a common law spouse may not perceive this difference in the day-to-day operation of a marriage. In fact, a common law marriage can have severe and negative consequences depending on the circumstances the couple finds itself in, such as it does not afford the same benefits as a legal marriage would afford, including Social Security and veterans’ benefits. Common law spouses may also have difficulties securing a low rate on their homeowner’s insurance and in banking due to the lack of a marriage certificate.
Despite the legal and practical differences between a common law marriage and a traditional marriage, some people still perceive a common law marriage as an "ordinary" marriage. This assumption leads some people to believe that they are in a common law marriage, or they assume that a common law spouse is entitled to the same rights as an "ordinary spouse" is entitled to. However, this assumption can be misleading, and can entail serious problems down the road when it is necessary to establish the existence of a common law marriage in a legal proceeding.
Legal rights and implications regarding common law spouses
In addition to the above, a common law spouse may also have a statutory right to take a share of a deceased spouse’s estate without a will for the spouse’s own benefit. The surviving spouse is entitled to 1/3 of the net estate of the decedent (after funeral and administration expenses, certain debts, and the surviving spouse’s funeral expenses are paid), unless otherwise provided by the decedent’s valid will. Iowa Code Section 633.267. This is often referred to as the surviving spouse’s "elective share." A surviving spouse’s rights to a "presumed" statutory share of an intestate estate is often considered more robust than those of a surviving spouse under a valid will, given that the decedent must expressly disinherit during his or her lifetime in order to be considered having waived the statutory share right.
An un-married common law spouse’s claims for spousal support, just like any other future lost income claims related to injury or death in the family, are not permitted in Iowa in the absence of the requisite legally recognized and entered-in-to relationship of marriage. Meyer v. Iowa, 753 N.W.2d 188, 197 (Iowa 2008) (holding that there is no claim for lost "spousal" income in the absence of a marriage).
Proving common law marriage in Iowa
To establish the existence of a common law marriage in Iowa, the parties must present evidence of an agreement to be married, the capacity to marry, and evidence of cohabitation and general reputation as a married couple. The burden to prove such an agreement and the subsequent actions to validate that agreement to the satisfaction of the court falls upon the proponent of the alleged common law marriage. Generally, the court will review a combination of evidence, including oral testimony of witnesses who can provide personal knowledge of the relationship between the parties, including reputation as a married couple within the community, documentation such as tax returns that reflect the marital status of the parties, or other records, which may support the claimed relationship.
Witnesses must have personal knowledge of the marital relationship of the parties in order to testify about the relationship. The "consensus" of witnesses is typically considered by the court when determining whether a common law marriage exists. In determining the existence of a common law marriage there must be evidence of the element of cohabitation — that the parties actually lived together as husband and wife . Also, the general reputation or "standing in the community" of the parties as a married couple can go a long way in proving the existence of a common law marriage. If a couple goes around publicly calling each other husband and wife, this may be evidence to support the cohabitation and agreement to be married elements.
A party claiming that a common law marriage exists may use any evidence discoverable or admissible under the rules of evidence to establish the elements of a common law marriage. Elements may be established by rebuttable and competent evidence. In determining whether a common law marriage exists, the court may look to the parties’ behavior during the course of their relationship.
Such "evidence" may be documented statements made by a physician relating the medical history of the parties. These statements, however, are considered statements from an interested party who can have some type of bias based on his/her relationship with a party, and, therefore, may not be credible. A combination of evidence may be offered to support the required elements to establish the existence of a common law marriage.
Dissolution of common law marriages
Iowa law provides that common law marriages can only be dissolved in the same manner as any other marriage, e.g., by divorce, annullment, or death. See In re Marriage of Lewis, 149 N.W.2d 862, 865 (Iowa 1967) ("Regardless of the number of conditions or acts necessary to establish a common law marriage, once it is established it becomes a legal marriage and is to be dissolved only by death, divorce or annulment. It is not a nullity and not subject to abatement by the death of one of the parties while the marriage is in pristine state"). Although rare, it is possible for a common law marriage to be annulled instead of dissolved by divorce. A common law marriage can be annulled if it cannot satisfy the requirement under Iowa law of present consent to be married. See In re Marriage of McCormick, 518 N.W.2d 791, 795 (Iowa Ct. App. 1994) (annulling common law marriage because no intent to marry).
Legal advice on common law marriages
Given the potential pitfalls associated with common law marriage and its dissolution, couples should seek reliable legal counsel in order to navigate issues that arise when one or both parties think they’ve been married by common law, or think they’re protected by Iowa’s law that allows for merit marriage. Those who are uncertain whether or not they’re generally accepted as married or have entered into a merit marriage can seek legal counsel to clarify their relationship under the law, including understanding what protections and rights they have, and what they must do to safeguard their continuing rights .
Individuals who seek marriage rights must also make sure they sign up for all spousal benefits that they believe they’re entitled to as soon as they’re eligible, including health care coverage, social security, tax exemptions, and shared home insurance (spousal insurance may be available through the workplace of the employee.) It’s very important to ensure that all areas of concern are covered adequately and all documents fully explain the spousal situation in a clear fashion so that no questions could be raised later.
