CommonLaw Marriage

THE MARRIAGE ZONE: COMMON LAW MARRIAGE

By Christopher C. Meyer  May 2008


Are you married, or are you just living together? In Colorado you can be married without ever participating in a marriage ceremony. Colorado is one of a minority of states that recognizes common law marriage.

What is “common law marriage”? A common law marriage requires no ceremony or license. The other type of marriage is a “ceremonial marriage” and requires a license and a solemnization or ceremony. A common law marriage requires only that the couple cohabit, believe that they are married, and hold themselves out to the community as being married. The third requirement involves things like introducing yourselves to others as being married, listings as Mr. and Mrs. with the Post Office, filing taxes as married and so on.

“Common Law” refers to court decisions rather than “statute law” that is created by legislative bodies. In Colorado “common law” also refers to the common law of England (including some English statutes) existing prior to the year 1688. As provided by the Colorado Constitution, this English common law is also the law in Colorado, unless it has been changed by the Colorado Legislature. Since common law marriage was recognized in England prior to 1688, it is recognized in Colorado. The Colorado Legislature could eliminate common law marriage, but has chosen not to. It is interesting to note that the total estimated population of the American colonies in 1680 was 151,507 people, a little more than the total population of Lakewood Colorado in the year 2000. Things were a lot different in 1688 than they are now.

Whether a Court will decide that you have a common law marriage will depend on the specific facts of your situation. It is unlikely that any one particular fact will be determinative. A Court will base its decision on all the facts. Listing your significant other as your spouse for insurance benefits or for tax purposes can be significant. But if the couple don’t consider themselves to be married and don’t hold themselves out to the community as being married, it is unlikely that a Court will decide they have a common law marriage. However, saying you are married in order to get health insurance coverage from your significant other or in order to save money on your taxes can lead to major credibility problems with a Judge when you later try to explain that you didn’t really mean that you were married. Needless to say, this can also lead to fraud problems with insurers and the tax authorities.

If you have a common law marriage, the legal ramifications are the same as a ceremonial marriage. The laws pertaining to divorce, support, child custody, property division, and bigamy are the same for common law marriages as they are for ceremonial marriages. There is no “common law divorce”. If you have a common law marriage and you want a divorce, you have to get it done the same way as the folks who have a ceremonial marriage.

The law pertaining to common law marriage is the same as other law. You must remember that: you may not understand it; you may not like it; and you may not think its fair; but it’s the law!




This article is for informational purposes only and does not constitute legal advice about your case.

Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information.