Under Iowa law, there are two ways for a couple to legally marry. The first is the traditional way: apply for a marriage license at your local courthouse and have a magistrate, judge, church clergy, Viva Las Vegas ordained minister, etc. perform the ceremony. The other way is with an implied “I do” under common law. The term, “common law,” all-too-often gets thrown around loosely. I’ve seen numerous instances where a live-in girlfriend or boyfriend thinks they are married by common law when that’s just not the case.
For inheritance or divorce purposes, whether a person is married by common law is up to the Court. In making its determination, the Court will look at various factors. In order for a marriage to be recognized under common law, the Court must find that the parties cohabitate and have a mutual agreement to be each other’s spouse. The following four factors must exist.
- Present intent of both parties;
- Both parties publicly declare themselves to be married;
- Continuous cohabitation; and
- The parties are legally capable of marrying.
Proving the intent of both parties is generally the toughest part of evidencing a common law marriage. If I’m representing a client who needs to prove he/she was married by common law (whether for inheritance or divorce purposes), I want concrete examples of both parties holding themselves out to the public as a married couple. Referring to each other as husband/wife/spouse, filing joint tax returns, naming each other as beneficiary of insurance policies, maintaining joint bank accounts and credit cards, and purchasing joint property are good facts to have on our side. Exchanging wedding rings and sharing a last name are two other symbolic factors that can further evidence the couple’s intentions.
Contrary to what many believe, in Iowa you do not have to cohabitate for a certain amount of time in order to be married by common law. I’ve had clients who have lived together for twenty or more years and are still not married by common law. Similarly, a couple who has only lived together for a short time may be married by common law if the four factors exist.
Keep in mind that common law e and traditional marriage are the same in regards to validity. Once you are married in Iowa you remain so until death, or divorce, do you part. Significantly, not all states recognize common law marriage, so major issues can occur if an Iowa common law married couple relocates to a state that doesn’t recognize common law marriage. If that couple wants to divorce in a state that does not recognize common law marriage, one or both of the parties may be very upset to learn that their Court won’t entertain a divorce action.
All sorts of happy, sad, “Jerry-Springer worthy” results can come from a common law marriage. As with most things, the key is to understand the law and know how your actions or inactions may significantly affect you or your loved ones.
The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel. You should not act or rely on any information herein.