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In re Marriage of Martin6/16/2004
iage is informal, known as a common law marriage. This type of marriage has been recognized in Iowa for well over a century. In re Estate of Fisher, 176 N.W.2d 801, 804 (Iowa 1970). Although a common law marriage is as valid as a ceremonial marriage, there is no public policy favoring this type of marriage. In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979) [hereinafter Winegard II]. Thus, claims of common law marriage are carefully scrutinized and the burden of proof rests with the party asserting the claim. Id.; Fisher, 176 N.W. 2d at 804-05.
Three elements must exist to create a common law marriage: "(1) [present] intent and agreement... to be married by both parties; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife." Winegard II, 278 N.W.2d at 510. All three elements must be shown to establish a common law marriage. Id.
1. Present Intent and Agreement
The requirement of a present intent and agreement to be married reflects the contractual nature of marriage. See Fisher, 176 N.W.2d at 806 (marriage is a civil contract that requires the consent of the parties). However, an express agreement is not required. See In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977) [hereinafter Winegard I]. An implied agreement may support a common law marriage where one party intends present marriage and the conduct of the other party reflects the same intent. See id. (common law marriage may arise even if the other party's intent is not to be married). The conduct of the parties and their general community reputation is evidence that can be used to support a present intent and agreement. Id.; Gammelgaard v. Gammelgaard, 247 Iowa 979, 980, 77 N.W.2d 479, 480 (1956) (cohabitation, as well as conduct and general community reputation, can be used to strengthen proof of present intent and agreement to be married). The present-intent-to-be-married requirement precludes a common law marriage based on an intent to be married at some future time. See State v. Grimes, 215 Iowa 1287, 1289-90, 247 N.W. 664, 665 (1933) (agreement to live as husband and wife until lawfully married does not establish present intent to enter into marriage relationship).
2. Continuous Cohabitation
Marriage is normally followed by cohabitation. See Love v. Love, 185 Iowa 930, 931-32, 171 N.W. 257, 257 (1919), overruled in part on other grounds by In re Estate of Dallman, 228 N.W.2d 187, 190 (Iowa 1975). Thus, continuous cohabitation is an element of common law marriage. Although it is circumstantial evidence of a common law marriage, it cannot alone establish a common law marriage. Conklin by Johnson-Conklin v. MacMillan Oil Co., 557 N.W.2d 102, 105 (Iowa Ct. App. 1996). There is no particular time that cohabitation must exist to establish a common law marriage. Love, 185 Iowa at 931, 171 N.W. at 257. Instead, it is important for the cohabitation to be tied to the present intent and agreement to be married. See In re Estate of Wittick, 164 Iowa 485, 493-94, 145 N.W. 913, 916-17 (1914).
3. Public Declaration
The public declaration or holding out to the public is considered to be the acid test of a common law marriage. See Winegard I, 257 N.W.2d at 616. This means there can be no secret common law marriage. Id. Yet, it does not mean that all public declarations must be entirely consistent with marriage. See Fisher, 176 N.W.2d at 806 (some inconsistent evidence noted); In re Estate of Stodola, 519 N.W.2d 97, 100 (Iowa Ct. App. 1994) (the parties represented they were single or not married at times). A substantial holding out to the public in general is sufficient. See Winegard I, 257 N.W.2d at 616; Conklin, 557 N.W.2d a
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