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Common Law Marriage -- Introduction

The establishment of a marriage goes far beyond emotional, romantic, and/or societal considerations. Over 200 Iowa statutes and "more than 1000 federal legal rights and responsibilities" are affected by or derived from marriage. Varnum v. Brien, 763 N.W.2d 862, 902 n.28 (Iowa 2009) (listing several citations). Iowa is one of the few states that recognizes common law marriages. Iowa's statute regulating marriage (Iowa Code ch. 595) is construed as directive; therefore, it does not invalidate marriages contracted in violation of its provisions. In re Stopps' Estate, 57 N.W.2d 221, 224 (Iowa 1953). In order to prove the existence of a common law marriage, the party asserting its existence must prove all three elements by clear, consistent and convincing evidence: 1. Present intent and agreement to be married; 2. Continuous cohabitation; and 3. Public declaration (holding out) that the parties are husband and wife. In re Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004).

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A. PRESENT INTENT AND AGREEMENT TO BE MARRIED

"The requirement of a present intent and agreement to be married reflects the contractual nature of marriage. . . . The present intent to be married requirement precludes a common law marriage based on an intent to be married at some future time." In re Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004) (citations omitted).

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B. CONTINUOUS COHABITATION

A misunderstanding concerning the second element - cohabitation - so permeates the populace that it qualifies as an urban legend. Many believe (wrongly) that merely living together for a certain period of time (usually seven years) is sufficient to establish a common law marriage. See In re Malli's Estate, 149 N.W.2d 155, 158 (Iowa 1967); Gammelgaard v. Gammelgaard, 77 N.W.2d 479, 480 (Iowa 1956). That legend has no basis in Iowa's legal history. See id. Cohabitation alone, no matter how long, never suffices to establish a common law marriage - the other two elements must be proven as well. In re Marriage of Martin, 681 N.W.2d 612, 617-18 (Iowa 2004) ("If two people desire the benefits of the law derived from marriage, they need to get married or establish a common law marriage. Cohabitation, alone, is insufficient to invoke the authority of courts to resolve property claims.")

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C. PUBLIC DECLARATION

As the final element, the law requires the two persons to have a general and substantial public declaration or holding out as being married. In re Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004). There can be no secret common law marriage. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977); In re Marriage of Dallman, 228 N.W.2d 187, 190 (Iowa 1975). This public declaration can be done in a wide variety of ways. Any behavior by a couple that tends to demonstrate they are husband and wife in the eyes of the community will contribute to meeting this requirement. For example: use of the other party's last name; referring to each another as "my husband" or "my wife" in front of others; wearing wedding bands; maintaining joint bank accounts; failing to correct people who refer to the couple as married; naming each other as a beneficiary under an insurance policy.

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D. LEGAL EFFECT OF COMMON LAW MARRIAGE

Though two persons can get married without any special rituals or documents, i.e., common law marriage, once a couple is married by common law, they are legally married for all purposes. Therefore, a dissolution of marriage action is necessary to end the marriage. There is no such thing as "common law divorce". In re Weems' Estate, 139 N.W.2d 922, 924 (Iowa 1966).