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In re Marriage of Martin6/16/2004
2d 485, 490-91 (Iowa 1984), we expressed reservations about property claims arising from cohabitation by unmarried persons. Furthermore, we have previously rejected claims of rights based on cohabitation by unmarried persons in other areas. See Laws v. Griep, 332 N.W.2d 339, 340-41 (Iowa 1983) (denying unmarried cohabitant's claim of loss of consortium); Baldwin v. Sullivan, 201 Iowa 955, 957-61, 204 N.W. 420, 421-23 (1925) (denying unmarried cohabitant's claim for workers' compensation). 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.
Notwithstanding, courts do have authority to adjudicate property claims of unmarried persons who cohabitate. Persons who cohabitate tend to accumulate property and the rights of the persons to such property may become disputed when the cohabitation ends. We have previously held that courts have jurisdiction over such claims. Metten, 366 N.W.2d at 579-80. However, the parties must allege a recognized legal theory outside marriage to support the claim. We have previously discussed the potential theories to support property claims between unmarried cohabitants, including claims of contract, unjust enrichment, resulting trust, constructive trust, and joint venture. See Slocum, 346 N.W.2d at 491-95.
In this case, Roberta alleged no legal theory outside cohabitation to support a division of property. Moreover, the only real evidence introduced to establish her rights in Brett's property was based on the cohabitation and the nature of the relationship, as well as the performance of various household tasks, including the preparation of meals. This is not the type of evidence that gives rise to the acquisition of rights to property. There needs to be more evidence beyond the general circumstances of cohabitation between two adults.
We conclude the district court did not have authority to divide the property of the parties in a manner that gave one party rights in property of the other party. Accordingly, we modify the decree of the district court by striking those property provisions of the decree that awarded Roberta property owned by Brett. We remand the case to the district court for entry of an order transferring title to the property described in paragraph seven of the decree to Brett, and for other relief relating to the property provisions of the decree consistent with this opinion.
V. Attorney Fees
Attorney fees to enable a party to prosecute or defend an action to establish and dissolve a common law marriage are allowable under section 598.11, as long as there is a fair presumption of the existence of a common law marriage, even if the court subsequently decrees that no such marriage existed. Stogdill, 428 N.W.2d at 671; Winegard I, 257 N.W.2d at 617-18. In this case, the original petition filed by Roberta requested attorney fees. Having made this request prior to the entry of the decree, the district court was authorized to make an allowance for attorney fees in the decree since the evidence established a fair presumption of a marriage. See Thorn v. Kelley, 257 Iowa 719, 725-26, 134 N.W.2d 545, 548 (1965) (award of attorney fees possible when divorce petition ultimately dismissed if sought under section 598.11). The lengthy period of cohabitation, together with the various public declarations of husband and wife, was circumstantial evidence that created a fair presumption of a common law marriage in this case. Conklin, 557 N.W.2d at 105. The district court properly awarded attorney fees.
VI. Conclusion
We vacate the de
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