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Memorandum MARCH 14, 1973

Topic Code: F121Filing Status (I)          Document Reference:

MEMORANDUM MARCH 14, 1973

TO: RONALD J. AMOSSON, DIRECTOR, INCOME TAX

FROM: BEN W. BROWN, SUPERVISOR, FIDUCIARY SECTION

DATE: MARCH 14, 1973 SUBJECT: COMMON LAW MARRIAGE AND ITS INCOME TAX CONSEQUENCES

The questions frequently arises, especially during the income tax filing season, as to what is a "common law" marriage, and if such a marriage is established, does Iowa and the Internal Revenue Service recognize this relationship as far as income tax returns are concerned. The question is important because both Iowa and the Internal Revenue Service permit married persons to file joint income tax returns. The marriage status confers certain tax benefits that are not available to single persons. Section 6013 of the Internal Revenue Code which permits filing joint returns and section 422.12 (2) of the Iowa Code which allows a $30.00 credit on the joint return are examples of the benefit. The subject can be divided into three general areas of discussion, with answers, or at least guidelines to be arrived at for income tax auditing use. The areas are: (1) Just what is a common law marriage? (2) Does Iowa recognize a common law marriage? and, (3) Does common law marriage, if established, qualify a person for the benefits given husband and wife for income tax purposes? This memorandum will discuss each of these items in sequence.

1.          What is a common law marriage A common law marriage is simply a social relationship between a man and a woman, that meets all the necessary requisites of a marriage, except that it was not solemnized, performed, or witnessed by an official authorized by law to perform marriages. See In Re Stopps' Estate, 244 Iowa 931 and section 595.11, Iowa Code. It is simply a marriage without a judge or a preacher. Incidentally, the term "common law" refers to law which is made by court decisions and not by legislative act. It is not common or ordinary, as daily usage of language would indicate. Common law is law and just as valid as the acts of a legislature. The Iowa Supreme Court has many times stated that the necessary elements of a common law marriage are, (1) A present intent of both parties, freely given, to become married, (2) A public declaration by the parties, or a holding out to the public, that they are husband and wife, (3) Continuous cohabitation together as husband and wife. This means consummation of the marriage. See In Re Estate of Fisher 176 NW 2d. 801 at 805. (4) Both parties must be capable of entering the marriage relationship, i.e. the parties must be of age and not presently married. See Stitt v. Sunderman 247 Iowa 1132, Drummond v. Irish 52 Iowa 41, Reppert v. Reppert 214 Iowa 17. You will note no special time limit is necessary to establish a common law marriage. The common talk that seven years is necessary is not the law. See Love v. Love 185 Iowa 930. Also mere living together does not in itself constitute a common law marriage. See In Re Boyington's Estate 157 Iowa 467. But an illicit relationship between parties at the beginning can become a common law marriage, if the intent is present after the disability is removed. For example if one party has not received a divorce, a common law marriage can come into being after a divorce is granted. See In Re Estate of Fisher 176 NW 2d. 801.

I think the common thread behind all of the cases cited is summed up nicely by a statement by the Iowa Supreme Court in Blanchard v. Lambert 43 Iowa 228.

"Any mutual agreement between a man and woman to be a husband and wife in praesenti, followed by cohabitation, constitutes a valid common law marriage if the parties are not legally disabled from marrying."

The essence of the marriage is the agreement and it does not have to be in any special form. See section 595.11, Iowa Code.

2.          Does Iowa recognize a common law marriage Iowa has recognized common law marriages for over a century. See In Re Estate of Fisher 176 NW 2d. 801, 804. Iowa also recognizes as valid a marriage entered into in another state, if it is valid in that state. Boehm v. Rohlfs, 224 Iowa 99.

3.          Does a common law marriage qualify a taxpayer for the benefits granted husband and wife for income tax purposes The Internal Revenue Service recognizes a common law marriage for income tax purposes, if it is recognized by the state in which it was entered into, even if the parties later move to a state in which a ceremony is required. See Revenue Ruling 58-66, 1958-1 CB 60. Once married always married until dissolved by death or divorce. Iowa as stated above recognizes a common law marriage and therefore the tax provisions of section 422.12 of the Iowa Code are available to taxpayers who have entered into a common law marriage.

There is one word of caution however: While Iowa recognizes common law marriages as valid as any other marriage, "The Courts do not favor it, and where a common law marriage is claimed, the Courts will carefully scrutinize the evidence and require that the marriage be established by clear and convincing evidence." In Re Estate of Fisher 176 NW 2d. 801, 804. So also should the Department of Revenue. "There is no presumption that persons are married, the burden of proving a marriage is on the party who asserts it, particularly where a common law marriage is asserted." ibid, page 804.

Respectfully submitted, Ben W. Brown, Supervisor Fiduciary Section