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In re Marriage of Martin6/16/2004
t 105.
B. Analysis
We turn to the evidence introduced at trial to determine if the three elements of a common law marriage were met in this case. This evidence reveals that Roberta and Brett lived together for a decade, except for a couple periods of separation, and held themselves out to the community on many occasions to be husband and wife. Various newspaper articles, employment newsletters, and other documents supported a community reputation of marriage. See In re Marriage of Gebhardt, 426 N.W.2d 651, 652 (Iowa Ct. App. 1988). The appellation of "Mrs." frequently used before Roberta's name also was evidence of a general reputation of marriage. See Fisher, 176 N.W.2d at 805-06; see also In re Estate of Clark, 228 Iowa 75, 104, 290 N.W. 13, 27 (1940). Notwithstanding, there were other times that Roberta and Brett declared themselves to be single or divorced, and otherwise portrayed themselves to others in a manner inconsistent with marriage. The fluctuating status of their relationship was, from the beginning, largely based on personal convenience or benefit, which is inconsistent with the concept of marriage. Overall, there were many inconsistent public acts or declarations relating to the status of their relationship. This inconsistency undermines support for a present intent and agreement to be married.
The intention of the parties was perhaps best revealed when Brett refused Roberta's request to remarry in 1994. The discussion of the topic by the parties effectively revealed they had no agreement to be married at that time, and there was no consistent evidence that followed to show such an agreement and present intent to be married was subsequently formed. The incident in 1994 also undermined Roberta's claim that the present intent and agreement to be married existed at the time of the divorce. Although Roberta may have felt that she was married to Brett throughout their cohabitation, the facts and circumstances of the separation in 1994 clearly revealed that Brett considered the marriage dissolved and did not intend to get remarried. Brett's intent, expressed to Roberta, was that he was not in a marital relationship. There was no substantial evidence to show the parties later agreed to become married. Considering all the facts and circumstances, we conclude that Roberta failed to establish a common law marriage.
IV. Division of Property
Brett does not challenge the provisions of the decree relating to child custody, support, visitation and other related issues. See Metten v. Benge, 366 N.W.2d 577, 579 (Iowa 1985) (a court of equity has power to determine issues of child custody and support between unmarried parents); see also Iowa Code §§ 252A.1-.25, 598B.101-.402, 600A.1-.10. Instead, he claims the district court had no authority to divide the property of the parties absent a finding of a marriage.
Marriage is one theory that permits the property of one person to be divided or transferred to another person at the time of the divorce. See Iowa Code § 598.21(1) (upon dissolution of marriage, "the court shall divide the property of the parties"). However, the power of the court to divide property under laws relating to the dissolution of a marriage exists only in the event a marriage is dissolved. See In re Marriage of Reed, 226 N.W.2d 795, 796-97 (Iowa 1975). The rights and remedies of chapter 598-the laws governing divorce-are not otherwise available to unmarried persons, and the district court derives no authority from chapter 598 to divide property of unmarried persons.
The court also has no broad equitable powers to divide property accumulated by unmarried persons based on cohabitation. In Slocum v. Hammond, 346 N.W.
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