What is a common law marriage?
Common law marriage is a legal concept where a couple can be recognized as married without ever undergoing a formal marriage ceremony or obtaining a marriage license from the state. It is a legal fiction that the parties to the relationship "construct" the marriage through their words and actions, rather than one created by a judge or other state official. The history of common law marriage can be traced back to the early English common law courts that addressed situations where a man and woman lived together (even for a short period of time) and held themselves out to be married.
In order to legally establish a common law marriage, there must be an agreement between the parties that they are married. This does not necessarily mean that there has to be a written agreement or a mutual exchange of promises in front of witnesses . The agreement by the persons to be married can be either express or implied from the acts and conduct of the parties. The agreement to be married can be inferred from the circumstances. For example, if a boyfriend and girlfriend live together for months and hold themselves out as husband and wife, but never directly say the words to each other, then they could have a common law marriage. Most importantly, the parties to a common law marriage must intend "to be married." In other words, there must be an intent to enter into what was traditionally viewed as a valid marriage.
Common law marriages are not recognized in all states. Although there are several states that recognize common law marriages, it is important to check the law in your state in order to determine if a common law marriage exists.
Colorado recognizes common law marriages
Until 1877, Colorado law did not recognize common law marriages. Since then, in the absence of a ceremonial marriage statute, Colorado and a number of other states have moved to recognize and make provisions for the common law wife or husband. Colorado has been the state on the cutting edge of this issue, and has had its share of prominent cases: In re Marriage of Lucero, Cook v. Cook, In re Marriage of Carey, and the present case.
In 1970, the General Assembly passed the Uniform Marriage Act, which states that any marriage validly entered into under the laws of another state shall be valid in Colorado even if it is prohibited by Colorado law. The Act also states that a civil union is invalid for want of a second witness or the requisite licensing fees. (This section of the statutes was drafted with common law marriages in mind.) This section of the law recognizes common law marriages, as long as they were validly entered into in another jurisdiction. The Act also includes several special provisions for common law spouses. This includes the removal of some of the time and place requirements. For example, 14-15-111(4)(c) states: "For all purposes under the laws of the state of Colorado, the date the parties cohabited is the date the common-law marriage came into existence."
Colorado’s common law relationship statute says that such a relationship exists between persons who consider themselves husband and wife and who (1) carry on together a marital relationship in this state and (2) publically hold themselves out as married. Colorado case law further indicates that if a common law marriage has begun, it will continue until one of the spouses dies or until one spouse repudiates the relationship.
As stated above, there are special provisions for common law spouses that are not applicable to ceremonial marriage spouses. For example, only "competent" adults (18 years of age or older) can enter into a common law relationship. The reason for this statutory provision is that minors can marry in Colorado, but can’t enter into a contract. Another example: If the parties are related, the common law relationship is not valid. Further, a common law spouse usually cannot inherit unless the spouse was named in a will or there is an adoption by the spouse.
The most important provision for purposes of succession is 15-11-201(4)(a), which says: "A common law marriage that is validly entered into during the lifetime of an unmarried person who has been divorced, or whose former spouse has died, may be established by proof that the parties cohabited in this state and declared their marriage by holding themselves out as husband and wife." This means that a ceremonial marriage that took place before a divorce was final or a common law marriage after a spouse died is not valid. However, if the first spouse died and the second spouse got married the next day, the second relationship (which is common law) is valid.
Based on the above, and the testimony of Tony on all the factors listed above, the court ruled that Tony and Dorys had entered into a valid common law marriage on April 15, 2005.
Common law marriage requirements in Colorado
Under Colorado law, there are 4 (four) requirements that must be established in order to determine whether common law marriage exists in Colorado. The first requirement is "cohabitation." Cohabitation can or may be shown by evidence. Whether or not parties cohabitate in Colorado is a question of fact and may be shown by testimony from them and/or their family, friends, co-workers, etc.
The second and third requirements are that the parties "intended to be married" and agreed to do so. While prior to July 26, 2006 Colorado common law marriage did not require an agreement to marry, now there must be at least a tacit agreement between the parties to marry.
The last requirement to establish common law marriage in Colorado is the requirement that the parties hold themselves out publicly as husband and wife. While there is no particular period of time, evidence of cohabitation together with this type of public presentation to the world as being married is normally strong evidence in support of a claim for common law marriage in Colorado.
Legal rights and obligations
In addition to proving their cohabitation together, parties must prove to the court that they intended to be married. The burden of proof for both matters is borne by the party attempting to divorce. For instance, a complaint for divorce or legal separation will not be accepted by the court unless it can be proved that there has been a serious marital discord. Colorado law provides the parameters for a couple living together to acquire marital rights.
The Uniform Dissolution of Marriage Act (UDMA) lays out the rights and responsibilities of a "married" couple. A common law couple who divorce must divide their own property between them in the same manner that a legally married couple would be obligated to do if they were to divorce. That is, they must equally share property if they acquired the property during the duration of their relationship, unless it was acquired as a gift to one partner. However, the courts reserve the right to consider the length of the relationship, along with the intended division of property to be fair and equitable.
A common law couple is presumed to be married for purposes of inheritance unless there is a pre-existing agreement that specifies otherwise. Typically, in the event of the death of one partner, all property would be divided equally. If there are children involved, it is presumed that the children would obtain a greater share of the property and earnings than would the spouses. Essentially, if there is no pre-existing agreement, the surviving partner is entitled to all property that was acquired by either partner during their time of cohabitation. Furthermore, parental rights are not affected by a common law marriage in Colorado, so both partners will be legally responsible for the care and well-being of any children they have together, and will have equal rights to visitation and contact.
Proving a common law marriage
As with most contracts and services, proof of the existence of a common law marriage could be required in the event of a divorce or death. A common law marriage will have to be recognized in the event of a divorce or death unless there is evidence that establishes that no marriage existed. The parties to a common law marriage will almost always have a common intention to be married. The parties are required to have an intent to form a legal marriage. A person can enter into a common law marriage regardless of the prior presence of an attempt to obtain a legal marriage, which is generally called a putative marriage. Each case is assessed on a case by case basis, since the parties’ actions can establish a marriage even in the face of statements that indicate that the parties do not wish to be spouses or efforts at avoidance of being found to be spouses. A common law marriage can be established if each party manifests an intent to be married, and if other factors are present (as discussed below). Because one party can avoid a legal marriage by denying that the parties are spouses, the intent of both parties to enter into a legal marriage is paramount to the existence of a common law marriage. If one of the parties (together or alone) has not manifested the requisite intent to marry, a common law marriage does not exist, even if the other necessary factors are present, such as cohabitation and holding the parties out as married to the public. If the intent of one party to the marriage is negated, there is a strong argument that a valid common law marriage does not exist. The mere expression of intent (which may or may not be rescinded) will not be sufficient to reject the parties’ relationship as a marriage. If there are no signs that a party has the intent to marry, and if the party is avoiding the institution of marriage , there is no common intent to be married. The requirement that the parties have a mutual intent to be married can be rebutted if there is evidence of express statements made, which evidence will be weighed with the evidence of indirect or circumstantial evidence. Co-habitation is when the parties share a residence during a period of time, primarily, in this context, at least during the period the putative marriage exists. Cohabitation may be inferred from evidence of shared living arrangements, such the parties engaging in joint banking, sharing a garage, sharing food, sharing chores, or sharing transportation, for example. If the parties reside in the same dwelling, they are sharing the same real estate and presumably sharing rent and expenses, which is evidence of cohabitation. Evidence to indicate that a party is not co-habitating can be considered in determining whether the essential element of cohabitation is satisfied. If the parties are not sharing a dwelling or sharing expenses, or if it is clear that the parties are residing or attempting to reside in separate residences, this evidence can serve as important evidence to support a conclusion that the parties do not cohabit. The factor that is most often placed in dispute is the holding out of the parties to the community as a single unit. While public holding out is not an element of a putative marriage, public holding out is considered very important to a common law marriage. Holding out can be established by: There is still controversy about the exact nature and degree of public holding out that are required in order to establish a common law marriage. Requirements of public holding out are not strictly enforced. An attorney with experience in familial issues may be best for you to contact if you believe that a common law marriage exists or if the existence of a common law marriage is being disputed.
Terminating a common law marriage
In Colorado, common law marriages can only be dissolved by a court through a divorce action. In this aspect, the process is similar to ending a traditional marriage. However, since common law marital status does not require a formal legal marriage license, this aspect also makes it different than a traditional legal marriage, which can be dissolved either by a divorce or an official annulment.
Once the validity of the marriage is accepted as valid, the couple is treated exactly the same as in a traditional legal marriage. That means the same laws apply when it comes to property division, child support, parenting time, and alimony payments.
Because courts in Colorado need to determine whether a couple is legally married – and thus entitled to all the benefits of being legally married – the process for legally ending a common law marriage tends to be involved and complicated. For example, the first question for a judge to decide is whether a legal common law marriage legally exists. Only if you pass this 1st step are the issues of child custody, asset and debt division, child support, spousal support, and marital property considered and resolved.
Difficulties and misconceptions
A common fallacy is that cohabitating couples in Colorado enjoy the same legal rights and privileges as legally married couples. This is simply not true; Colorado does not recognize domestic partnerships, or "common law marriages" as partnerships. Some other jurisdictions do recognize such partnerships, or have a domestic partnership system that is similar to marriage in the state of Colorado.
Although domestic partnerships play no part in Colorado laws, there are numerous notable benefits to being legally married in the state. For example:
• A spouse is entitled to an inheritance if only one spouse dies, even without any type of will.
• Many employee health care plans provide coverage to spouses.
• Colorado law allows for adoption as husband and wife.
Another frequent misconception is that common law marriages aren’t given the same priority as those formally recognized under Colorado law. In fact, for many years, the vast majority of common law couples were never issued marriage certificates due to record-keeping, meaning that many married couples might not be able to get a marriage certificate.
Another misconception is that common law marriages are less permanent than those that are officially recognized. While it may be true that many legally defining factors must be met for a couple to be considered married under Colorado law, a common law marriage is permanent until and unless there is a divorce. Only a judicial declaration can alter a common law marriage.
Many people are not aware that Colorado has been the state with the longest history of designating unions as common law marriages. The last state to repeal its laws recognizing common law marriages was Colorado; the state repealed its common law laws in 2006 but chose to give it a pause period and then conclude that year.
When you should seek help
Seeking legal advice in this area is key. Although something is potentially "common law," there are several issues that a very basic review would not address. For instance, Colorado does not recognize common law marriage in every county. And the requirements for separation of property vary from county to county as well.
If you find yourself in any litigation that involves a claim or rebuttal of a claim of common law marriage, your best bet for an advocate who knows the law is to do your research and find an attorney who has experience with this legal issue, specifically in the county in which you will be litigating the matter.
Once you’ve settled on an attorney with the experience you’re looking for, set a time to meet face to face or speak on the phone and get a sense of these questions and their answers.
When consulting with a lawyer about this or a related issue, you should be prepared to discuss and ask questions about the following:
- What experience does the lawyer have with common law marriage? (Again , ask specifically about cases in the county where you will be litigating the matter.)
- Has the lawyer ever been through the appeals process if his or her case was not successful?
- What is the likely outcome of your case in litigation – what are the factors involved?
- Has the attorney settled cases similar to mine in favor of his/her clients?
- Was the settlement equitable for the client? How was it fair to the other party?
- What is the estimated timeline for my case to be completed?
- What is the cost associated with common law marriage litigation?
- Will I be charged for calls and visits related to court appearances?
- Is there flexibility in payment options for this service?
Getting good legal advice for you or a family member can mean all the difference on your day in court. This is something to dedicate time to when you find you need this type of advocacy on either side of a common law marriage claim or rebuttal.