The Colorado Supreme Court on Monday changed the way common-law marriage is defined in the courts to make it more inclusive of same-sex couples and to update the three-decade-old legal standard to better reflect today’s societal norms.
In a trio of opinions, the justices created a new legal standard for common-law marriage that is more flexible and gender neutral, and found that the key factor courts should consider when determining whether a couple was common-law married is whether the couple mutually intended to enter a marital relationship, and whether the couple’s subsequent conduct supported that decision.
That contrasts with the state’s former standard, established in 1987, which suggested that judges should consider several specific markers to establish a common-law marriage, like whether the couple owned property together, filed joint tax returns or the woman took the man’s last name. The justices ruled Monday that conduct supporting a common-law marriage might look different for different couples, and emphasized that courts should consider the context and totality of each couple’s circumstances.
“The significance of a given factor will depend on the individual, the relationship and the broader circumstances, including cultural differences,” Justice Monica Marquez wrote in the court’s opinion. “For example, one same-sex couple’s use of of the label ‘partner’ may convey ‘spouse,’ while another’s many not.”
Factors like whether a couple presented themselves publicly as married, celebrated anniversaries and shared bills, homes or children can still be considered, but should be considered in the broader context of the couple’s relationship, the court found.
Same-sex couples, for example, might not present themselves as married publicly out of fear of discrimination, and that lack of a public presentation should not necessarily count against a claim common-law marriage, said Shelly Skeen, senior attorney at Lambda Legal, a nonprofit organization that works to advance LGBTQ rights.
“The same standards should be applied to different-sex couples and same-sex couples, but you should recognize the reality of LGBTQ relationships,” she said. “That’s exactly what the court did.”
Colorado is one of only nine states that still recognize common-law marriage, and the Colorado Supreme Court is the first high court in the country to set out a modernized standard for same-sex common-law marriage, said Cathy Sakimura, deputy director of the National Center for Lesbian Rights.
“They’re trying to get away from one of the pieces that doesn’t make sense not only for same-sex couples, but for a lot of people,” Sakimura said of the changes, adding later, “People can agree to marry and live their lives as if they are married without having some of the things that might have been expected in the ’80s, like having children together or owning a home together.”
The justices also recognized, as was widely expected, that same-sex couples could be in legitimate common-law marriages even before same-sex marriage was legalized in the United States in 2015.
Justice Melissa Hart argued in a separate but concurring opinion that common-law marriage should be abolished altogether in Colorado, calling it an unnecessary, outdated practice that is “often unpredictable and inconsistent.”
In some ways, the court’s new standard makes it more challenging for judges to sort through whether a couple intended to be in a common-law marriage, Sakimura said, because it removes the clear-cut checklist of factors judges previously relied on and instead forces judges to carefully consider the individual circumstances of each case.
The Supreme Court justices noted that some licensed marriages, if scrutinized under the standard for establishing a common-law marriage, would fall short.
“We recognize that common-law marriage determinations present difficult, fact-intensive inquiries,” Marquez wrote. “But we have full faith that our judges, who interact daily with Colorado families in all their diversity, can fairly make these sensitive assessments.”
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