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Common Law Marriage and Same-Sex Couples

Common law marriage is a marriage that is recognized by a state, despite their being no formal marriage license in place. Most states no longer recognize common law marriage. However, Colorado is an anomaly and does recognize common law marriage, along with nine other states and the District of Columbia. Common law marriages are afforded the same legal obligations and protections as all other marriages in the state of Colorado.

In People v. Lucero, the Colorado Supreme Court held that common law marriages are valid in Colorado. However, this ruing preceded the legalization of same-sex marriage in Colorado. [i] In 2015, the United States Supreme Court ruled that it is unconstitutional for same-sex couples to be deprived of the right to be married, making same-sex marriage legal throughout the United States. Yet, the Court did not address how this ruling would affect common law marriage. [ii]

In re the Marriage of Edi L. Hogsett and Marcia E. Neale, the Colorado Court of Appeals addressed the question of whether common law marriage also applies to same-sex marriages. In this case, the couple had ended their thirteen-year relationship. During their relationship, they had exchanged rings, lived together, and maintained joint bank accounts. When the parties separated, Hogsett filed for divorce, and Neale objected stating they were never married. Neale based her position on the fact that same-sex marriage was not not legal for the majority of their relationship.

The court first looked at the factors established in Lucero to determine whether the couple would have been common law married; the issue of the federal legalization of same-sex marriage aside. Those factors are: 1) Both of the parties are over 18 years of age; 2) The parties agree that they are married[iii]; 3) The parties cohabitate as a married couple after agreeing that they are married; and, 4) The parties hold themselves out to be a married couple. [iv]

In applying the Lucero factors to Hogsett and Neale’s relationship, the court found that, while the parties did have joint accounts and a home together, there were insufficient facts to support that a common law marriage existed. The court found that Neale had told Hogsett multiple times during their relationship that she did not want to get married. Likewise, the fact there was no attempt to get married in a state where same-sex marriage was legal was significant to the Court, as was the absence of references to their “marriage” throughout their relationship. [v]

The court then turned to the question of whether common law marriage applies to same-sex relationships that endured before same-sex marriage was legal in Colorado. The court determined that the concept of common-law marriage does apply to same-sex relationships, including those that preceded the legalization of same-sex marriage in Colorado.

Why is this so significant? This decision means that same-sex couples are entitled to the same rights and protections that accompany a claim of common law marriage. While the court determined Hogsett and Neale were not common-law married, this decision is major progress towards securing equal rights for same-sex couples.

If you believe that you may be common law married and are considering separating from your spouse, you should speak with a family law attorney as soon as possible. At GEM Family Law, our seasoned attorneys can help you understand your rights and options.

Authored by: Kristin N. Day, J.D. Candidate 2020

[i]People v. Lucero, 747 P.2d 660 at 663 (Colo. 1987)
[ii] Obergefell v. Hodges, 135 S. Ct. 1039 at 2584 (2015)
[iii] C.R.S. § 14-2-109.5
[iv] People v. Lucero at 663.
[v] Hogsett v. Neale, 2018 COA 176 (Colo. App. 2018)
[vi] id.