By Natalie R. Mitchell
Attorney at Law
The Gasper Law Group, PLLC
According to the Colorado Attorney General’s Website, the common-law elements of a valid marriage are that the couple
- is free to contract a valid ceremonial marriage, i.e., neither party is already married to someone else;
- holds themselves out as husband and wife;
- consents to the marriage;
- lives together; and
- has the reputation in the community as being married.
To form a common law marriage parties must cohabit as husband and wife and claim to be husband and wife. There is no length of cohabitation required for a couple to be considered common law married, however, living together is not enough to establish common law marriage. In order for a presumption of marriage to arise, the couple must do more than live together in the same house. The parties must intend to be married as shown by their reputation and conduct.
If one party believes that the parties are living as husband and wife but the other party does not and there is not other affirmative conduct as husband and wife, there cannot be a common law marriage. The parties essentially must act, perform and do everything as if they were married but without a valid Colorado ceremony. Further, a common law marriage cannot exist while one party is still married to a third party.
Factors the court may consider when determining if there is a common law marriage include:
- Whether the couple hold themselves out as married to third parties, and have a reputation of being married,
- Filing joint federal or state tax returns,
- Listing the other party as a spouse on insurance forms or retirement plans,
- Joint finances, joint bank accounts, or joint ownership of property,
- The woman taking the man’s last name, and
– If the couple went through any of the rituals of marriage, such as exchanging rings, or an informal ceremony
Once it’s been determined that a common-law marriage does exist, there is no difference between that marriage and a marriage with a marriage certificate and ceremony. The Colorado Supreme Court has ruled that discrimination against common-law marriages is unconstitutional. If you have a valid common-law marriage, you should be able to enjoy all the rights and responsibilities of marriage, including benefits, insurance, pension, and inheritance. Alternatively, if you have a valid common law marriage the only way the marriage ends is the death of a party to the marriage or through divorce.