COVID 19 and Common-Law Marriages in Colorado By: Leah M. Gallant, Garfield & Hecht, P.C.
The COVID 19 pandemic and its related social distancing and avoiding large gatherings means that some couples may be interested in consummating a marriage without waiting for the usual formalities of a marriage license and a ceremony. Current prohibitions against large gatherings of families and friends make wedding planning difficult. Colorado is one of the few states where a marriage can be consummated without a license or ceremony because Colorado still recognizes common-law marriages. At common-law, a marriage is established by (1) mutual consent or agreement to be married, and (2) by a mutual and open assumption of a marital relationship. In Colorado, a common-law marriage can now be established between a man and a woman, or between same-sex couples.
Many people hold the belief that in order to be common-law married, a couple must satisfy a cohabitation requirement of a certain period of time. While this may be true in other jurisdictions, Colorado has no such condition. Colorado courts have found the existence of common-law marriage for couples who have cohabitated for as little as six months. Although the fact of cohabitation is a necessary element that courts will look at, the essential ingredient is the consent of the parties to be married.
Mutual consent to be married can be fairly straightforward. For example, a couple could make an agreement in writing, or participate in a ceremony with just one or two friends or family members present. More often, however, the parties do not expressly declare their intention verbally or through a written agreement. For example a common law marriage could come into being through a couple’s general reputation in their community as being husband and wife. This is what is known as “open assumption of a marital relationship.” One court has described this general repute as “the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife.” Although, as stated above, living together for a certain time period is not a requirement in Colorado, cohabitation it is an important factor that the courts will look at in order to establish mutual public acknowledgement of a marital relationship. Courts consider open cohabitation as objective evidence in cases where there is a dispute as to the existence of mutual consent.
Although it is impossible to establish a universal blueprint for a finding of common-law marriage, Colorado courts do look at certain types of evidence in cases where there is a dispute. Courts have declared that this evidence should be “clear, consistent, and convincing,” indicating that vague claims of a marital relationship are insufficient to support a finding of common-law marriage. A couple does not need to satisfy all of these factors, rather, a court can use these factors as a guide in making a determination. Some factors that Colorado courts have looked to are: (i) Joint ownership of property (ii) Joint tax returns (iii) Designation of the other party as a beneficiary on insurance forms (iv) Designation of the other party as a spouse on medical or employment forms (v) Wearing a ring (vi) Use of a common surname (vii) Use of the man’s surname by children born to the parties and (viii) Calling each other “husband” or “wife” in a public setting or in a writing.
While valid common-law marriages do exist in Colorado, courts will carefully sift through the evidence presented and look to the totality of the circumstances in order to protect against fraudulent claims. The continued recognition of such marriages “serves mainly as a means of protecting in interests of parties who have acted in good faith as husband and wife.” Recently, some members of the Colorado judiciary have voiced their frustration with common-law marriage and the often irregular results that can occur with such a fact-based determination. Contrary to Colorado, the majority of states in the US have determined that common-law marriages are troublesome, and no longer legally or practically necessary.
For additional information or guidance on domestic relations issues, please contact Eric D. Musselman, phone (970) 925-1936 ext. 225, email: or Leah M. Gallant, phone (970) 925-1936 ext. 814, email: .
 See In re Marriage of Hogsett and Neale, 2018 COA 176.
 Taylor v. Taylor, 50 P. 1049, 1049 (Colo. App. 1897).
 People v. Lucero, 747 P.2d 660, 664 (Colo. 1987).
 See Hogsett, supra.