Military Law Issues
Common Law Marriage
Iowa is one of the few jurisdictions that recognize the "common law" marriage. Others being Colorado, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. Additionally case law supports common law marriage in Alabama, Rhode Island, and Oklahoma. Common law marriage was previously allowed, but no longer, in Pennsylvania, Ohio, Indiana, Georgia, and Florida. Common Law marriage is a residual concept from the pioneer days when ministers were few and far between and courthouses were long distances from the pioneer farms. Even though some states recognize common law marriage, the marriages are not favored and thus common law marriages are closely scrutinized by the court.
All three of the following elements must be proven to the court to be a recognized common law marriage:
1. Present intent and agreement to be married; (express intent is not required and implied intent can be enough, and even the implied intent of one party may be enough, but an intent to be married in the future always defeats a common law marriage);
2. Continuous cohabitation (but no length of time is required contrary to the urban myth requiring 7 years); and
3. General and substantial Public declaration that the parties are husband and wife. There can be no secret common law marriage. Examples of public declaration include:
a. use of the other party's last name
b. referring to each other as husband and wife
c. wearing wedding bands
d. maintaining joint bank accounts
e. failing to correct people who refer to them as husband and wife
f. using marriage labels such as Mr. and Mrs., etc. when registering at hotels, seeking loans, signing leases, etc.
g. naming each other as beneficiaries in life insurance policies
h. telling relatives, friends and others that the couple is married
i. registering to vote as a married person
j. joint tax returns (often the only factor considered by judges)
k. Joint credit
l. raising children together.
A common law marriage must be dissolved by a court as a regular marriage must be, and all three elements must be proven to the court before a decree of dissolution is issued. Therefore, it is crucial to determine whether a common law marriage existed when a couple lives together and wants to separate.
If you move to another state, the common law marriage may be recognized even if the state does not recognize common law marriages. It is advisable to retain an attorney if this is your situation, as there might be difficulties in recognizing the common law marriage.
One possible new issue with common law marriage is the recent change in law allowing same sex marriage throughout the country. Same sex couples should examine whether they have actually had a common law marriage if the couple meets the above criteria. It could be possible that a relationship would need to be terminated with a dissolution if the couple had expressed their intent to be married. However, some judges will only consider that a couple is married only if they have filed joint tax returns (the definitive criteria).