You may recall the scene in the movie Legally Blonde where first-year law student Elle Woods joins Paulette, her cosmetologist friend, on a trip to Paulette’s jerk of a former live-in boyfriend’s home. At the trailer park, Elle saves the day spouting confusing (and humorously incorrect) legal jargon about common law marriage, cohabitation, and the “benefits of property law,” ultimately resulting in Paulette’s regained possession of her beloved bulldog. Elle and Paulette then speed away in a convertible with the former couple’s property equitably divided. The viewer leaves the scene satisfied with a vague feeling that justice has been served.

Although no reasonable person would look to a Reese Witherspoon movie for sound legal guidance, this easy-breezy application of common-law marriage mirrors general misconceptions about the doctrine. There seems to be a mistaken belief that by living together for an extended period of time a couple can unintentionally create a common-law marriage and thereby enjoy the benefits and legal protections of a marriage contract. This is simply not accurate.

Today, very few states even recognize common-law marriage. Although, Iowa is one of the few that still do, the burden on a party asserting the marriage in Iowa is very high. When a couple is married by common law, they are legally married for all purposes and may enjoy all the benefits of marriage including the equitable division of property in a divorce, the establishment of rehabilitative alimony, and inheritance rights upon the death of a spouse. Before these benefits can be asserted, the existence of a common-law marriage must be proven to the court. Because common-law marriages are not viewed as furthering a public purpose, claims of common-law marriage are viewed with suspicion and are carefully scrutinized by the courts. Therefore, a party asserting common-law marriage must prove the following three elements by clear, consistent and convincing evidence: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) general and substantial declaration that the parties are husband and wife.

The first element, “present intent and agreement to be married,” basically means that a common-law married couple must have agreed to be married. This intent element is often the most difficult to establish. Present intent is not satisfied by an agreement to marry in the future. The intent must be to be married starting NOW. A mere agreement to be husband and wife without the present intention to assume the relationship does not constitute a marriage. This agreement does not need to be expressed in words and can be implied by a couple’s conduct.

Normally, a couple will begin living together after getting married, therefore continuous cohabitation is an element of common-law marriage. However, cohabitation is essentially just circumstantial evidence of intent and in no way can cohabitation alone establish a common-law marriage. A stable and significant live-in relationship with all the essential characteristics of an ideal marriage is not a common-law marriage without the existence of the actual intent to be married. Iowa does not require cohabitation to exist for a particular amount of time before it is considered “continuous.”

Finally, there can be no “secret marriage.” The couple must make a public declaration or hold out to the public that they are married in order to be considered common-law married. This element is considered the “acid test” of a common law marriage. Public declarations of marriage can be done in a variety of way and need not be entirely consistent. Some examples include use of the same last name, maintenance of joint bank accounts, using married labeled such as Mr. and Mrs., telling friends relatives, or acquaintances they are married, filing joint income tax returns, failing to correct people who refer to the couple as married.

Common-law marriages are fairly rare and have the disadvantages of uncertainty and doubt until some sort of conflict makes the legal confirmation of the marriage necessary. However, the existence of the doctrine of common-law marriage guards the reasonable expectations of Iowans in certain stable and continuous relationships that deserve to be protected.