CO Common Law Marriage

Now that you are a law student, friends, family and strangers will ask you all sorts of questions, to which you will reply “I can’t give legal advice” and they will respond “I don’t want legal advice I just want to know”…whatever. One of the most common questions that people ask about is common law marriage, especially if a couple is living together. Cohabitation alone, however long, does not mean the parties are married! It is only evidence of a common law marriage where the parties mutually agree to cohabitate as husband and wife, mutually and openly assume a marital relationship, and are understood by others to be married. Behavior such as maintaining joint banking and credit accounts; joint ownership of property; the use of the man’s surname by the woman; filing of joint tax returns; use of the man’s surname by children of the parties; or any other behavior that demonstrates the intention of the parties that they are husband and wife can be evidence of a common law marriage.

Common law marriage is not allowed in most states, but most states will recognize a marriage that is valid in the state in which it was entered into. The case of In re the Marriage of J.M.H. and Rouse 143 P.3d 1116 (Colo. App. 2006) held that under the common law age of consent a 15 year old female is competent to consent to a common law marriage. The Uniform Marriage Act’s age of consent does not govern a common law marriage. In response to this case, the legislature enacted a statute (C.R.S. § 14-2-109.5) that went into effect July 18, 2006. This statute closed the loophole that recognized common law marriages by parties under the age of eighteen without parental or judicial consent. The statute now requires that each party to a common law marriage be at least eighteen years old or gain parental or judicial permission according to applicable provisions already in the statutes regarding ceremonial marriages. It also provides that an underage common law marriage contracted within or outside Colorado shall not be recognized as valid in Colorado after September 1, 2006. The new statute did not disturb the case law outlining the elements which evidence a common law marriage. Parties to a common law marriage must obtain a legal dissolution of marriage prior to entering into another valid marriage.

The main cases outlining the requirements and elements considered evidence of a common law marriage include:
Taylor v Taylor 50 P. 1049 (Colo. App. 1897)
Graham v Graham 274 P.2d 605 (Colo. 1954)
People v Lucero 747 P.2d 660 (Colo. 1988)
Crandell v Resley 804 P.2d 272 (Colo. App. 1990)
In re the Marriage of Phelps and Robinson 74 P.3d 506 (Colo. App. 2003)

See also: Office of Legislative Legal Services publication (December 6, 2006) Common Law Marriage .