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May 2019

I. Elements of Common Law Marriage

A. Background.  Colorado is one of only 11 states that still recognize common law marriage.  Several of the states only recognize it up to a certain date or under certain circumstances. Common law marriage is a holdover from centuries ago when it was difficult to find a clergyman or other official to formally solemnize a marriage but it was important to establish a marriage so that children were not born as bastards and for purposes of property transfer. Over the course of time most states passed laws that required a couple to obtain a marriage license and to have their union formally recognized by a clergyman or a judge or some other person authorized to preside over marriage ceremonies.  While Colorado has laws that address marriage licenses it still recognizes common law marriage. 

In a nutshell, common law marriage means a marriage between two people based on their intention to be married, the fact they hold themselves out to be married in the community and a consummation of the marriage and cohabitation, or living together.  It presumes that they did not obtain a formal marriage license and did not have that marriage license completed by a clergyman or other official. 

Up until 2015 in Colorado marriage meant the union of a man and woman.  However, in 2015 the Supreme Court of the United States held that same sex couples were entitled to marry and claim the benefits of marriage.  Therefore, it is likely that same sex couples also can be common law married. 

B. People v. Lucero, 747 P2d 660 (Colo. 1987) is the leading case in Colorado that analyses and sets forth the elements of establishing a common law marriage. This was a criminal case where the defendant claimed he was married to a witness and objected to her testimony because she was his wife and under the law a spouse cannot be compelled to testify against another spouse.  The court found they were not common law married and permitted the witness to testify over defendant’s objection.  On appeal the Colorado Supreme Court held: 

• A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. “[I]n this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding.” 
• We affirm today that such conduct in a form of mutual public acknowledgment of the marital relationship is not only important evidence of the existence of mutual agreement but is essential to the establishment of a common law marriage. The reason for this requirement is to guard against fraudulent claims of common law marriage. As Professor Clark suggests in his treatise on domestic relations, “[a]dding the requirement of open marital cohabitation gives assurance that some objective evidence of the relationship will have to be introduced in every case to establish that the parties did consider themselves husband and wife.”
• The very nature of a common law marital relationship makes it likely that in many cases express agreements will not exist. The parties’ understanding may be only tacitly expressed, and the difficulty of proof is readily apparent. We have recognized that “the agreement need not have been in words,” and the issue then becomes what sort of evidence is sufficient to prove the agreement. We have stated that if the agreement is denied or cannot be shown, its existence may be inferred from evidence of cohabitation and general repute.   In such cases, the conduct of the parties provides the truly reliable evidence of the nature of their understanding or agreement.
• The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking 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, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred.

At the end of the day the Supreme Court remanded the case back to the trial court to make more specific findings on the existence of a common law marriage based on the factors set forth in the opinion.   

B. Case law that addresses the issues of common law marriage:

• Employer’s Mutual Liability Insurance Co. of Wisconsin v. Industrial Comm’n, 124 Colo. 68, 73, 234 P.2d 901, 903 (1951). Older workmen’s comp case.  Claimant alleged she was the common law wife of the deceased who died in a work related accident.  The evidence was that she had lived with the deceased but that her divorce was not final during a period of time when they cohabitated.   The Court of Appeals stated: It was held in Peery v. Peery, 27 Colo.App. 533, 150 P. 329, that evidence concerning a common-law marriage should be clear, consistent and convincing; and in The Estate of Klipfel v. Klipfel, 41 Colo. 40, 92 P. 26, we ruled that to establish the presumption of marriage by cohabitation and repute, the marriage contract must be established by convincing and positive evidence. We cannot say that the evidence in this case satisfies the foregoing requirements. In our judgment it is too scanty, dubious and even contradictory. At the same time it discloses many places and persons where and from whom more convincing evidence might be obtained, followed by a failure to present such evidence. This case was cited by the Lucero case in a footnote.  The Lucero court noted that the “clear and convincing”language did not establish a new standard of proof but rather that… “[T]his language was not chosen in order to establish a higher burden of proof for those attempting to prove a common law marriage, but instead merely stresses that the parties must present more than vague claims unsupported by competent evidence.”

• Estate of Medina v. Wires, 765 P2d 618 (Colo. App. 1988).  Probate case.  Medina claimed to be common law spouse of the deceased.  Court found the evidence was insufficient to prove the existence of a common law marriage.  The Court found that filing tax returns as a single person and not taking the surname of the man is sufficient basis to determine that no common law marriage exists. 

• Whitenhill v. Kaiser Permanente, 940 P2d 1129 (Colo. App. 1997).  Claim by party who claimed to be the common law wife of a deceased party who was seeking to prosecute a wrongful death claim.  The Court followed the Lucero case and held that absent an express agreement, the two factors considered the most reliable in determining whether an intent to be married has been established are cohabitation and a general reputation in the community that the parties hold themselves out as husband and wife.  The evidence in this case was an alleged affidavit signed by the deceased on the date of his death but there was no other evidence of intent or reputation in the community as husband and wife.  Court found no common law marriage existed. 

• Crandall v. Resley, 804 P2d 272 (Colo. App. 1990).  Quiet title case.  Plaintiff claimed to be the common law wife of the deceased, Mr. Resley.  Evidence was that in the community it was known that the Plaintiff was married to third party and that the couple was not married and would not be married until the Plaintiff obtained a divorce.  Many months after the death of Resley Plaintiff obtained a decree of dissolution nunc pro tunc to a date before Resley died.  The Court found that there was no evidence that during Resley’s lifetime there was an agreement to be married and that to do so would be speculation.   

• IRM Hogsett and Neale, –P3d– (Colo. App. 2018).  Same sex couple case.  Trial court found that the evidence did not establish a common law marriage.  Court of Appeals affirms and notes that proof of a common law marriage “…turns on issues of fact and credibility, which are properly within the trial court’s discretion.”   The opinion also

notes that “…if one party to a purported common law marriage believes she is married, but the other party does not, a marriage cannot be established.” There is also an interesting discussion in this case of why the holding in Obergfell v. Hodges, 135 S.Ct. 2584 (2015) accords a same sex couple the right to prove the existence of a common law marriage even if the conduct establishing the marriage predated the holding in Obergfell.

• Yudkin v. Shtutman, –P3d– (Colo. App. 2019)  2019 COA 25  February 21, 2019—Plaintiff claimed to be the common law wife of the deceased and made a claim to his property in the probate court.  The magistrate found there was no common law marriage.  The Court of Appeals reversed and entered a decree of marriage.  The magistrate found that the parties agreed to be married, cohabitated and had a reputation in the community as husband and wife. However the magistrate found no marriage because the parties did not own property jointly or file joint tax returns.  The Court of Appeals found that the magistrate misapplied the rule in Lucero.  It found that the evidence of marriage was “overwhelming” and that the magistrate gave too much weight to the fact they did not file joint tax returns or own joint property.  The Court of Appeals held that once the magistrate determined, as he did, that the parties agreed to be married, cohabitated and had a reputation in the community as husband and wife the inquiry should have ended.   

C. Practical Considerations

• The burden of proof is on the party asserting a common law marriage.

• There is no set length of time for the co-habitation to turn it into a common law marriage.  Urban myths exist claiming that living together for 5, or 7 or 10 years make a co-habitation a common law marriage.  Like alligators living in the sewer and photos of Elvis at the Burger King, these are myths. What is important is the intent to be married, the reputation for being married in the community and co-habitation. 

• Evidence of tax returns filed as a single person or as a married couple during the time of the alleged marriage are often the “smoking gun” because they are signed under penalty of perjury.  Other documents that may establish or defeat a claim of common law marriage are loan applications, applications for insurance, wills, and other written designations stating that the parties either are or are not spouses.   

• Ownership of property in both names (real estate, bank accounts, etc.) generally is not a smoking gun unless there is also evidence that the parties are “spouses”.   

• If there is jointly owned property but no marriage the petition for dissolution of marriage will likely be dismissed and further legal action may be necessary to fairly divide the jointly owned property, i.e., a civil action for replevin or for partition or sale of real estate. 

• Other legal remedies include equitable actions for unjust enrichment or the creation of a constructive trust.   See Salzman v. Bachrach, 996 1263 (Colo App. 2000); IRM Heinzman, 596 P2d 61 (Colo. App. 1979).   

• If two people wish to live together but do not intend to be married it may be wise to enter into a written co-habitation agreement.  Such an agreement can spell out their agreements with respect to any real estate, cars, bank accounts, investments, debts, credit cards, sharing of expenses, etc.