Opinion
January 17, 1962
Appeal from a decision of the Workmen's Compensation Board. The problem in this case is whether the claimant is the widow of the deceased employee by virtue of a common-law marriage purported to have been contracted in Iowa in June and July, 1958. At the time the parties began living together in Illinois, claimant was under disability to contract a marriage because of the existence of a then subsisting marriage. A divorce granted in Virginia became final on January 21, 1958. In March, 1958 a child was born to the parties at Cortland, New York. The proof is that at that time in a conversation between the parties it was said both that "we are man and wife" and "we are the same as man and wife". There is other proof that decedent later introduced claimant as his wife both in Cortland and in Mississippi in May of 1958. During the time the parties were in Iowa decedent introduced claimant as his wife and they lived together with their child as husband and wife. It is clear that under the statutory and decisional law of Iowa a common-law marriage is recognized if based on more than mere cohabitation, i.e., on a present intent to be husband and wife. ( Gammelgaard v. Gammelgaard, 247 Iowa 979; McFarland v. McFarland, 51 Iowa 565.) The decision of the Workmen's Compensation Board disallowing the claim on the ground a marriage was not established fails to make adequate factual findings. All we are advised by the board is this: "The fact that she and the decedent continued to live under the same conditions and relations without any further affirmative act or declaration, or any ceremonial marriage, after the impediment had been removed, is not sufficient to find the claimant to be the legal widow." The board should find definitely whether, after the impediment was removed, claimant and decedent cohabited together in Iowa with a present intent to be husband and wife. Such an intent, of course, could be established in some part by their previous conversations or actions in other States after January 21, 1958 if they bore upon the relationship in Iowa. We are unable to spell out of the words of the board's decision whether it meant to find that there was no such cohabitation in Iowa with such intent; or whether, assuming that there was such an intent, as it might be found from claimant's proof, it would be insufficient under Iowa law to make out a common-law marriage. These are entirely different questions and we need a clear resolution of the facts in order to give an adequate answer to the legal problem. We do not, of course, suggest how the facts should be resolved; but merely indicate that they should be resolved. Decision reversed and claim remitted to the Workmen's Compensation Board for further proceedings, with costs to claimant against respondents employer and carrier. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.