Keith Mack
Common-law marriage in Colorado is a confusing topic for many, as there are many misconceptions about what constitutes a common-law marriage. For example, simply living together for a certain period does not create a common-law marriage. While cohabitation is a factor in determining a common-law marriage, it is not a requirement, and there is no specific duration required. To be considered common-law married in Colorado, a couple must meet certain criteria, including mutual consent or agreement to be married and mutual and open assumption of a marital relationship. This can be proven through evidence such as witness testimony, documents, joint finances, and registration as a married couple. Common-law marriages in Colorado are legally binding and are treated the same as ceremonial marriages, requiring a formal divorce to dissolve the union.
| Characteristics | Values |
|---|---|
| Number of states that recognize common-law marriage | 12 |
| States that recognize common-law marriage | Colorado |
| Requirements for common-law marriage | Mutual consent or agreement to be married, mutual and open assumption of a marital relationship |
| Evidence of common-law marriage | Witness testimony, documents, joint finances, cohabitation, joint checking/savings account, registration as husband and wife on applications, use of the same last name, etc. |
| Termination of common-law marriage | Death or divorce |
| Rights of common-law spouses | Same as a couple who had a civil or religious ceremony with a marriage license |
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What You'll Learn
Mutual consent and agreement
The mutual consent and agreement do not have to be expressly made orally or in writing. Evidence of an agreement can be inferred through the conduct of the parties, such as cohabitation, joint finances, and how they present themselves to the community. For example, a couple may be considered to have a common-law marriage if they regularly refer to each other as "spouse", "husband", or "wife" in public, list each other as spouses on documents, or share joint bank accounts.
To prove mutual consent and agreement in a common-law marriage, a couple may need to provide evidence in court, such as witness testimony, documents, and other relevant factors. The court will consider the specific circumstances and conduct of the couple to determine whether there was an intention to enter into a marital relationship. It is important to note that simply living together or being in a long-term relationship does not automatically establish a common-law marriage without the mutual consent and agreement to be married.
Colorado is one of the few states that recognizes common-law marriage, and it has been legally recognized since 1877. A common-law marriage in Colorado is valid and binding, granting the couple all the legal rights and responsibilities of a ceremonial marriage. If a couple in a common-law marriage moves to another state, their marriage is still recognized due to federal law provisions. However, it is important to be aware of the laws in specific states, as some may not legally recognize common-law marriages.
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Intention to enter a marital relationship
To be considered common-law married in Colorado, both parties must be free to contract a valid ceremonial marriage, i.e. they are not already married to someone else, they are not related by blood, and they are both over the age of 18.
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". This means that both parties must agree to be married and then act like a married couple. The mutual consent and agreement do not have to be made expressly, either orally or in writing, but can be inferred by cohabitation and repute, meaning the conduct of the parties during the marriage.
There is no time requirement for a common-law marriage, it could exist after one month or may never exist after thirty years. It is the facts and circumstances that matter, not the amount of time. However, a common-law marriage claim asserted years later is less credible than one asserted more promptly.
Evidence of a common-law marriage includes:
- Joint finances, such as joint credit cards, debts, or bank accounts
- Listing each other as “spouse” on insurance, estate documents, pension plans, and other benefit forms
- Regularly referring to each other as “spouse,” “husband,” or “wife” in public
- Registration as husband and wife on applications, leases, contracts, registers, etc.
- The woman taking the man's last name
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No cohabitation requirement
In Colorado, common-law marriage is recognised as legal and binding, and has been since 1877. The state is one of 12 in the US that recognises such a union.
To be considered common-law married in Colorado, a couple must meet certain criteria. Firstly, both parties must be free to marry, i.e. not already married to someone else, not related by blood, and over the age of 18.
Secondly, there must be a mutual consent or agreement to be married. This does not have to be expressly made, either orally or in writing. Evidence of this agreement can be inferred by "cohabitation and repute", meaning the conduct of the parties during the marriage. For example, a couple who live together, have joint finances, and regularly refer to each other as "spouse", "husband", or "wife" in public, may be considered to have a common-law marriage.
In 2021, the Colorado Supreme Court refined the test for common-law marriage, stating that it "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, two people are common-law married when they agree to be married and then both act like a married couple.
It is important to note that cohabitation is not a requirement for common-law marriage in Colorado. While cohabitation is a relevant factor in determining whether there is a common-law marriage, it is not essential. A couple living together for a long period of time does not automatically constitute a common-law marriage.
If there is a dispute about whether a common-law marriage exists, the Court will hold a hearing to determine the validity of the marriage. It will be the couple's job to prove that they were common-law married by presenting evidence such as witness testimony and documents.
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Evidentiary hearing
In Colorado, a common-law marriage is valid for all purposes and is considered the same as a ceremonial marriage. It can only be terminated by death or divorce. To be considered common-law married, a couple must meet certain criteria, including the "mutual consent or agreement of the parties to be husband and wife" and a "mutual and open assumption of a marital relationship." While cohabitation is a relevant factor, it is not a requirement, and there is no specific duration required for cohabitation to prove a common-law marriage.
To prove a common-law marriage, an evidentiary hearing may be necessary. An evidentiary hearing is a situation that requires a judge to hear witness testimony under oath that is relevant to the issue in the case. It is similar to a mini-trial or a bench trial. In an evidentiary hearing, exhibits are prepared ahead of time and pre-marked, and witnesses are made available.
During an evidentiary hearing for a common-law marriage, evidence such as witness testimony and documents are introduced to prove the elements of "mutual consent or agreement" and "mutual and open assumption of a marital relationship." This evidence can include factors such as cohabitation, joint finances, and the couple's behavior when the relationship ended. The court considers this evidence to determine whether the couple intended to enter into a marital relationship, sharing a life together as spouses in a committed and intimate relationship of mutual support and obligation.
It is important to note that the factors considered by the court are not a litmus test but are used to assess the specific conduct and intent of the couple in question. The Colorado Supreme Court has emphasized that there is no single element or formula for a common-law marriage, and each case is decided based on its unique facts and circumstances.
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Divorce proceedings
In Colorado, a common-law marriage is valid for all purposes and is treated in the same way as a statutory marriage. This means that ending a common-law marriage follows the exact same process as any other divorce.
To prove a common-law marriage, the two elements that must be demonstrated are:
- Mutual consent or agreement of the parties to be husband and wife
- Mutual and open assumption of a marital relationship
These elements can be proven by introducing evidence such as witness testimony and documents. There is no time requirement for a common-law marriage, and cohabitation is not a requirement, although it is a relevant factor.
If a common-law marriage is asserted during a divorce proceeding, the court will first determine whether a common-law marriage exists. If a marriage is found to exist, the court will proceed with the divorce. If no marriage is found, the court will dismiss the case.
During a divorce proceeding, issues of alimony, child custody and support, and division of assets may need to be addressed. In the event of a partner's death, if a common-law marriage has not been previously established, proof of the marriage will be required.
It is important to note that the specific factors considered in determining a common-law marriage may vary, and Colorado courts take a flexible approach in their assessment.
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Frequently asked questions
The requirements for a common-law marriage in Colorado are that both parties are of legal age (18) and not already married to someone else, related by blood, or under the age of 18. The couple must mutually consent or agree to be married and act like a married couple.
You can prove a common-law marriage through evidence such as joint finances, listing each other as spouses on insurance and other important documents, and regularly referring to each other as spouses in public.
A common-law marriage is treated the same as a statutory marriage, and the only way to end it is to file for a legal divorce through a court.
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