Common Law Marriage

In this day and age of cohabitation instead of marriage, Colorado courts hear more and more claims of common law marriage. Determining whether a couple is common law husband and wife is not always easy. Any person cohabitating with another should ponder the question, “Are we married in the eyes of Colorado law?”

Traditional Marriage and Common Law Marriage in Colorado

A traditional Colorado marriage is the formal joining of a man and woman as husband and wife. Typically, there is a Colorado marriage certificate, a ceremony presided over by the appropriate religious or public official, and the public exchange of rings by the couple. The couple publicly agrees to be husband and wife and then openly assume a marital relationship.

Colorado is one of several states recognizing common law marriage. In Colorado, the requirements of a common law marriage are not much different from the requirements of a traditional marriage, except that the formalities are missing. For a common law marriage to exist, the couple must mutually consent or agree to be husband and wife followed by a mutual and open assumption of a marital relationship. Mere cohabitation does not equate to a common law marriage.

While the requirements of a traditional marriage and common law marriage may be similar, establishing the existence of a common law marriage can be difficult. The formal ritual surrounding a traditional marriage provides facts that indisputably establish the marriage. In a common law marriage, the facts are not so obvious and sometimes hard to prove.

How a Common Law Marriage is Determined in Colorado

A Colorado court will look at all the facts surrounding the relationship to determine if a common law marriage exists. Any acts or documents that indicate an agreement to be husband and wife are important. Based on the facts, the court will then determine whether the couple mutually agreed to be husband and wife.

Relevant facts include the existence of joint bank accounts, joint credit cards and joint property ownership. The filing of joint tax returns as husband and wife, the use by the woman of the man’s surname and the use of the man’s surname by children can indicate an agreement to be married. A will identifying the partner as a husband or wife is compelling evidence.

Many individual rights hinge upon the existence of a marriage. For example, a Colorado spouse has a right to claim maintenance in a divorce, a portion of the deceased spouse’s estate at death, the right to bring a wrongful death action upon the wrongful death of a spouse, an entitlement to workers compensation benefits and a spousal testimonial privilege (as in not being required to testify against a spouse). Many retirement benefits may be available only to a spouse. Some life insurance policies automatically assume that the spouse is the beneficiary, and if there is no spouse, then the children of the deceased.

Relying on a common law marriage to establish rights as a spouse is risky at best. To be secure in a marriage and the corresponding marital rights, the only sure fire way is by a traditional, formal marriage.