The Hesitancy Behind Recognizing Common Law Marriages

Regan Wilson, Iowa Family Law, Iowa Trusts & Estates, Des Moines Iowa, Dickinson Law Firm

Posted on 07/18/2018 at 12:42 PM by Regan Conder

Committed relationships come in all shapes and sizes. As cultural norms shift and expand, the obligation to walk down the aisle in front of loved ones is no longer required. In today’s society where divorce rates soar, some people also choose to forego a marriage license to eliminate the pressure of an even messier split down the road. The surprising reality is that even if you forego a ceremonial union, you could wind up in the throes of a divorce if you are found to be in a common law marriage.

Common law marriages are not governed by statute and are, therefore, difficult to define. As a result, most states do not recognize common law marriages, and Iowa is one of only eight states that continues to recognize common law marriages.  

Under Iowa caselaw, the party alleging the common law marriage has the burden of proof to establish the following: (1) a present intent and agreement to be married by both parties; (2) continuous cohabitation (NOTE: no defined period of time); and (3) a public declaration that the parties are married.  In Iowa, the public declaration factor is considered the “acid test” as to whether a common law marriage exists.

In a recent opinion, the Iowa Court of Appeals examined whether a common law marriage existed to determine whether to terminate a former husband’s spousal support obligation. In Iowa, remarriage of the recipient spouse is often an event that terminates a spousal support obligation. In this case, the former wife and her new partner participated in a “celebration of love” ceremony complete with mailed invitations, an announcement in the local paper, a bridal party, and the exchange of vows and rings. Even though the parties’ ceremony had all the characteristics of a traditional marriage ceremony, the court found that the moving party failed to prove that his ex-wife and her partner intended to become common law married. The court relied in large part upon the fact that the parties carefully avoided the words “marriage” and “husband/wife” and did not refer to each other as husband and wife following the ceremony.  

Was the Iowa court’s rejection of the common law marriage its implicit approval of the ex-wife’s efforts to further her new relationship while maintaining her spousal support? Likely, no. The court’s exercise of caution is more likely because of the ripple effect that occurs when recognizing a common law marriage. The most obvious impact of recognizing a common law marriage is the obligation of the parties to formally divorce if the relationship turns sour. If a party demonstrates the existence of a common law marriage, the parties’ assets are then up for division.

Another impact of recognizing a common law marriage arises in probate matters. For example, under Iowa law, if a person dies without a will, Iowa imposes a schedule of relatives who are subject to take a share of the estate. Imagine how uncomfortable it would be to watch an estranged ex-partner of a loved one crawl out of the woodwork alleging a common law marriage to the decedent. If the estranged ex-partner prevails, he or she stands to inherit a substantial share of the decedent’s estate.

A third example could result in criminal repercussions. For example, a person may list his or her partner as a spouse to obtain health insurance through his or her employment. Thereafter, if the parties split, they would then have to decide whether to come clean and possibly face criminal fraud charges or whether to concede to a common law marriage and jump through the hoops of a divorce. Neither option is attractive, and both have substantial economic impacts.

Because the ramifications of recognizing a common law marriage are widespread, states that continue to recognize common law marriages will hopefully take the Iowa approach of proceeding with an abundance of caution.   

If you are interested in additional information, feel free to contact Regan Conder.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Regan Conder


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