Colorado is one of only a few states that continue to recognize the concept of “common law” marriage. Common law marriages have been recognized since ancient Greek and Roman civilizations, eras where community recognition of the marital relationship exceeded the involvement of state or religious institutions. In Colorado today, a common law marriage allows parties to become married without the need for a marriage license issued by the government and without the need for a formal marriage ceremony. It is important to understand what does and does not create a common law marriage, as couples married under the common law are considered married for all legal purposes. Furthermore, there is no “common law divorce”, and couples married under the common law in Colorado must comply with the requirements of the Uniform Dissolution of Marriage Act in order to obtain a divorce. Outside of the context of divorce, common law marriage can have implications on pension and retirement account benefits, spousal testimonial privileges, workers compensation benefits, and inheritance determinations.
Common law marriage is a frequently misunderstood concept. The most often repeated misconception is that living with a partner for seven years (or some other magic number) will automatically create a common law marriage. Other errors include the idea that sharing a bank account with a partner, commingling finances, or making major purchases together can create a common law marriage. The reality is that a common law marriage is established by the consent or agreement of the parties to be husband and wife, followed by their mutual and open assumption of marital relationship, including cohabitation. There is no minimum time period of cohabitation, no requirement that the parties share a bank account, and no requirement that the parties file taxes jointly.
In some cases, both parties agree that they have entered into a common law marriage. But often one party asserts the existence of a common law marriage, while the other party denies that a common law marriage was created. The very nature of common law marriages makes it unlikely that a written agreement concerning the intent of the parties will exist. In these instances, a trial court is required to determine the issue, after examining the facts and weighing the credibility of the witnesses. There is no single set of circumstances which will give rise to a common law marriage. Colorado courts can consider a range of behavior, including maintenance of joint bank and credit accounts; purchase and joint ownership of property; the use of the man's surname by the woman; the use of the man's surname by children born to the parties; and the filing of joint tax returns. However, no one factor is determinative. Any form of evidence that openly manifests the intention of the parties to be husband and wife can support the finding of a common law marriage.
The party asserting the existence of a common law marriage must prove its existence by clear, consistent and convincing evidence. This can be a difficult standard to meet. Even in cases where the parties signed written acknowledgments of common law marriage, Colorado courts have held that this evidence alone was insufficient to find the existence of a common law marriage.
The importance of whether a common law marriage is found to exist cannot be overstated. The resolution of this issue can have many implications, and may impact a party’s ability to receive spousal support (maintenance) and how property accumulated during the relationship is treated. In order to fully understand their rights and responsibilities, individuals who believe they may be in a common law marriage should consider meeting with a family law attorney.