Gavin Howe
Common-law marriage is a term used to refer to unmarried, cohabiting heterosexual couples. While common-law marriage is not recognized in countries like England, Wales, Ireland, and Australia, it is legal and binding in certain states in the US, including Colorado. In Colorado, a common-law marriage is established by the mutual consent of two people to be married and a mutual and open assumption of a marital relationship. This means that both parties must be of legal age, neither can be married to someone else, and they must be free to enter into a marriage. While cohabitation is a factor in determining a common-law marriage, it is not required, and there is no specific duration mandated for cohabitation.
| Characteristics | Values |
|---|---|
| States that recognize common law marriage | Colorado, one of the few states that still recognize common law marriage |
| Requirements | Both parties must be at least 18 years old, legally free to marry (not currently married to someone else), cohabitation, mutual consent to be married, and holding themselves out to the public as married |
| Evidence | Joint financial accounts, shared property ownership, using the same last name, wearing wedding rings, referring to each other as spouses, cohabitation, affidavits from friends and family members |
| Termination | Legal divorce or death of one of the parties |
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What You'll Learn
Common law marriage is a legally recognised form of marriage in Colorado
Firstly, both parties must be at least 18 years old. Secondly, both parties must be legally free to marry, i.e. not currently married to someone else. Thirdly, the couple must cohabit, or live together, though there is no specific time requirement for cohabitation. Fourthly, the couple must mutually agree to be married. Finally, the couple must hold themselves out to the public as married, for example, by referring to each other as husband or wife, using the same last name, listing each other as spouses on insurance or other legal documents, or filing joint tax returns.
If a couple wishes to prove they have a common law marriage, they can provide evidence such as joint financial accounts, shared property ownership, wearing wedding rings, and referring to each other as spouses. Affidavits from friends and family members can also be used to establish the couple’s reputation as married. If a couple wants documentation directly related to their common law marriage status, they can complete an Affidavit of Common Law Marriage. This is not a requirement, but it may be useful if the couple needs to prove their marriage in court.
If a common law marriage is in dispute, the couple will likely have to go to court and testify before a judge. If a common law marriage is found to be invalid, the couple may still be considered ''putative spouses' if they lived together under the good faith belief that they were married. Putative spouses have the same rights as legal spouses, including the right to alimony and property.
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There is no single formula for a common law marriage
Common law marriage is a legally recognised form of marriage in Colorado, though it is only one of 12 states that recognise it. While cohabitation is a relevant factor in determining whether there is a common-law marriage, it is not a requirement. Likewise, cohabitation without the intention to be married does not constitute a common-law marriage.
The Colorado Supreme Court has explicitly stated that there is no single element or formula that results in a common-law marriage. In People v. Lucero, the court explained that "any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred."
The two major components necessary to establish a common-law marriage are the "mutual consent or agreement of the parties" and the "mutual and open assumption of a marital relationship." The mutual consent and agreement of the parties do not have to be expressly made orally or in writing. In addition, there is no specific time requirement for cohabitation, though the couple must demonstrate that they have lived together in a marital-like relationship.
Evidence of a common-law marriage can include joint financial accounts, shared property ownership, using the same last name, wearing wedding rings, and referring to each other as spouses. Affidavits from friends and family members can also be used to establish the couple's reputation as married. However, an affidavit is not required and is likely insufficient on its own to prove a marriage.
If a common-law marriage is in dispute, one party's self-serving testimony that they intended to be married, or that they did not intend to be married, is unlikely to be persuasive. Instead, admissible evidence will be required for each of the relevant Hogsett factors.
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Both parties must be legally free to marry and be over 18
Colorado is one of the few states that still recognize common-law marriage. However, for a common-law marriage to be recognized in Colorado, both parties must be legally free to marry and be over 18. This means that neither party can be married to someone else, and both must be at least 18 years old. If either party is between the ages of 16 and 18, they must obtain appropriate parental or guardian consent.
To prove that a couple is in a common-law marriage, they must meet certain criteria. While cohabitation is a relevant factor, it is not required, and no specific duration of cohabitation is necessary. In addition, cohabitation without the intention to be married is not sufficient to create a common-law marriage. The couple must mutually agree to be married and hold themselves out to the public as married. This can include referring to each other as husband and wife, using the same last name, listing each other as spouses on insurance or other legal documents, or filing joint tax returns.
If a couple wishes to prove they are in a common-law marriage, they can file an Affidavit of Common Law Marriage with their county clerk. This document will state their ages, the fact that there are no impediments to their marriage, and that they are, in fact, married. However, an affidavit is not required, and without more evidence, it is unlikely to be sufficient to prove a marriage. Other forms of evidence, such as joint financial accounts, shared property ownership, and wearing wedding rings, can also be used to establish a common-law marriage.
It is important to note that if a common-law marriage is in dispute, one party's testimony that they intended to be married or not married may not be persuasive. Colorado district courts must hold a hearing to determine whether a common-law marriage exists, and each spouse will likely testify before the court. If the court finds that a marriage was prohibited, one party may still be considered a "putative spouse," meaning they lived with a partner under the good faith belief that they were married. Putative spouses have the same rights as legal spouses, including the right to alimony and property.
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The couple must cohabit and mutually agree to be married
Colorado is one of the few states that still recognize common-law marriage. However, simply living together for a period of time does not create a common-law marriage. While cohabitation is a relevant factor, it is not required, and no specific duration is mandated.
The Colorado Supreme Court has summarised the common law marriage law in the state as follows: "A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." This was further refined in 2021, when the Court held that a common-law marriage may be established by "the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement." In other words, the couple must cohabit and mutually agree to be married.
The core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. This mutual consent and agreement do not have to be expressly made orally or in writing. Any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred.
Evidence of a common-law marriage can include joint financial accounts, shared property ownership, using the same last name, wearing wedding rings, referring to each other as spouses, and affidavits from friends and family members. If a couple wishes to formalise their common-law marriage, they can complete an Affidavit of Common Law Marriage, which is available from the state.
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Same-sex couples can enter into common law marriages
Colorado is one of the few states that still recognize common-law marriages. A common-law marriage is established by the "mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." This means that simply living together for a period of time does not create a common-law marriage. While cohabitation is a relevant factor in determining whether there is a common-law marriage, it is not required, and there is no minimum duration for cohabitation.
In the context of same-sex couples, the recognition of common-law marriages varies across different jurisdictions. In Texas, for example, same-sex common-law marriages are recognized following the Supreme Court's decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015. Same-sex couples in Texas can enter into a common-law marriage by fulfilling the three elements outlined in Section 2.401. They can also register their common-law marriage by filing a declaration with the county clerk.
In other jurisdictions, such as Canada, while some provinces may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married. They may be defined as "unmarried spouses" and treated similarly to married spouses in certain contexts, such as taxes and financial claims.
In Ireland, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 granted certain rights to unmarried cohabitants, but civil partnerships are no longer available following the Marriage Act 2015, which legalized same-sex marriage.
It is important to note that the term "common-law marriage" is sometimes used incorrectly to describe cohabitation or other legally formalized relationships that may not be legally recognized as marriages. The specific requirements and recognition of common-law marriages, especially for same-sex couples, can vary depending on the jurisdiction, so it is always advisable to consult an experienced family law attorney for accurate information.
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Frequently asked questions
Yes, Colorado is one of the few states that fully recognize common-law marriages.
The requirements for a common-law marriage in Colorado include: both parties must be at least 18 years old, both parties must be legally free to marry, the couple must cohabitate, the couple must agree to be married, and the couple must hold themselves out to the public as married.
Evidence of a common-law marriage in Colorado can include joint financial accounts, shared property ownership, using the same last name, wearing wedding rings, and referring to each other as spouses. Affidavits from friends and family members can also be used to establish the couple’s reputation as married.
Yes, following the U.S. Supreme Court’s decision in Obergefell v. Hodges (2015), same-sex couples can enter into common-law marriages in Colorado, provided they meet the state’s requirements.
