Article: What is a Common Law Marriage

In the state of Colorado, there are certain relationships in which the parties are considered “married” even though they did not obtain a marriage certificate or have a marriage ceremony. Colorado recognizes the existence of Common Law Marriages under circumstances that would establish evidence of “mutual agreement or consent of parties to be husband and wife.”
Common-law marriage is a legal framework in a limited number of jurisdictions where a couple is legally considered married, without that couple having formally registered their relation as a civil or religious marriage. In effect, the act of the couple representing themselves to others as being married, and organizing their relationship as if they were married, acts as the evidence that they are married.

The kinds of evidence that would establish a Common Law Marriage, includes:

  1. Conduct of the Parties that would show their intent of a common law marriage, such as telling friends, family or co-workers that each of the parties considered themselves to be married, or even having a child together and financially supporting that child, are the kinds of behaviors that could persuade a judge that there exists a Common Law Marriage.
  2. Written or signed evidence of a statement used to obtain benefits as a married couple, such as when one of the parties has the other sign an acknowledgement of marriage for the purposes of obtaining insurance benefits held by the other spouse.
  3. Joint filing of Tax Returns.
  4. Joint bank accounts, investment accounts, IRA accounts, etc.
  5. Joint purchases, such as obtaining automobiles or furniture and having joint title or ownership.
  6. Co-habitation or living together for an extended duration of time.
  7. Exchanges of wedding rings.
  8. Providing joint care, custody and control over children born of the relationship.
  9. Obtaining credit cards or loans in both names.
  10. The joint purchase of land, residence, condominium, townhouse, etc. The joint title to any such real property in both parties’ names.
  11. A written agreement that shows the parties belief that a marriage exists.
  12. Other: Either through conduct or behavior that would show that parties “held themselves out as husband and wife.

The burden of establishing a Common Law Marriage is usually with the party who wants to prove to a court that certain benefits that are usually only reserved for legally ceremoniously married individuals, should also apply to those individuals who may have a Common Law marital relationship. These kinds of issues frequently arise in Family Court when a spouse wants Maintenance or Alimony or seeks to divide property or assets.

Common-law and statutory marriage have the following characteristics in common:

  1. Both parties must freely consent to the marriage
  2. Both parties must be of legal age to contract a marriage or have parental consent to marry
  3. Neither party may be under a disability that prevents him or her from entering into a valid marriage – e.g. they must both be of sound mind, neither of them can be currently married, and some jurisdictions do not permit prisoners to marry.

Otherwise, common-law marriage differs from statutory marriage as follows:

  1. There is no marriage license issued by a government and no marriage certificate filed with a government
  2. There is no formal ceremony to solemnize the marriage before witnesses
  3. The parties must hold themselves out to the world as spouses (this is not a requirement of statutory marriage)
  4. Most jurisdictions require the parties to be cohabiting at the time the common-law marriage is formed. Some require cohabitation to last a certain length of time (e.g. three years) for the marriage to be valid. However, cohabitation alone does not create a marriage. The parties must intend their relationship to be, and to be regarded as, a legally valid marriage.
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