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Misconceptions About Common Law Marriage

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Being married gives people certain legal rights. Many of these legal rights don't become important until the couple splits up. If there is a marriage, whether it is a "regular" marriage or a common law marriage, when the couple splits up they can get a divorce. In a divorce, the court can decide who is responsible for paying debts, divide real estate and other property, and in limited situations, award alimony.

If we live together for seven years, don't we have a common law marriage?

Maybe. There are three requirements for a couple to be married by common law in Iowa:

  1. There must be an agreement that the people are married.
  2. The couple must live together continuously as spouses.
  3. The couple needs to present themselves publically as a married couple.

There is no specific time that the couple must live together to meet the second requirement. The couple does need to live together continuously, and not just occasionally or on weekends. They also need to live together as a couple, which generally means they need to have a sexual relationship.
Both people must meet all three requirements. For example, if one person considers himself or herself married, but the other person doesn't, there is no common law marriage.

If my spouse and I consider ourselves to have a common law marriage, doesn't that mean we are married?

Not necessarily. It is the legal system rather than the couple that decides if there is a common law marriage. Until the legal system says there is a common law marriage, it is not absolutely clear whether one exists.

Is a common law marriage as good as a "regular" marriage?

Sort of. A person who has a marriage by common law has the same legal rights as a person who was married in a religious ceremony or in front of a judge or magistrate. The problem is it can be hard to prove whether a common law marriage exists. A marriage certificate is issued by the State of Iowa when a person has a "regular" marriage. This certificate proves a person is married. There is no similar document that exists for common law marriage.

A Court can decide if a common law marriage exists. This happens most often if a person files for a divorce claiming he or she has a common law marriage. The Court will then decide if there is a common law marriage. The Court cannot divorce a couple unless there was a marriage. The person asking the Court to divorce them based on a common law marriage has to prove to the Court there was a common law marriage, and this can be difficult.

If we have a common law marriage, can I get a common law divorce?

No. There is no such thing as a common law divorce. Only the Court can divorce a couple. Once a common law marriage exists, it continues to exist until there is a divorce by the Court.

If we both use the same last name, do we have a common law marriage?

Not necessarily. There is no requirement that one spouse take the last name of the other spouse. Even doing so does not establish a common law marriage. All three of the requirements listed above must be met for there to be a common law marriage. The third requirement is that the couple hold themselves out to the public as being married. A person using his or her spouse's last name is evidence that the couple held themselves out to the public as married. Other evidence includes things such as:

  • introducing each other as the person's spouse
  • exchanging wedding rings
  • listing each other as spouse on insurance policies and other documents
  • filing tax returns as married persons
Last Review and Update: May 11, 2011
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