Colorado Supreme Court revamps common-law marriage rules

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DENVER  | The Colorado Supreme Court has changed the way common-law marriage is legally defined to allow for more inclusion of same-sex couples.

A trio of opinions issued Monday update the state’s three-decade-old legal standard to better reflect today’s societal norms, The Denver Post reports.

Colorado is one of only nine states that recognize common-law marriage. The court created a new legal standard for the union that is more flexible and gender neutral.

The justices ruled the key factor courts should consider when determining whether a couple was common-law married is whether they mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision.

The new definition contrasts with the state’s former standard, established in 1987, which suggested judges should consider several specific markers to establish a common-law marriage.

Those included whether the couple owned property together, filed joint tax returns or a woman took a man’s last name.

The justices ruled that conduct supporting common-law marriage may look different for separate couples, emphasizing that courts should consider the context and totality of each couple’s circumstances.

Factors such as whether a couple presented themselves publicly as married, celebrated anniversaries and shared bills, homes or children can still be considered, but should be looked at in the broader context of the couple’s relationship, the court found.

“The significance of a given factor will depend on the individual, the relationship and the broader circumstances, including cultural differences,” Justice Monica Marquez wrote.

The Colorado Supreme Court is the first high court in the country to set out a modernized standard for same-sex, common-law marriage, said Cathy Sakimuri, deputy director of the National Center for Lesbian Rights.

“They’re trying to get away from one of the pieces that doesn’t make sense not only for same-sex couples, but for a lot of people,” Sakimuri said.

Same-sex couples may not present themselves publicly as married out of fear of discrimination and the lack of public presentation should not necessarily count against a claim common-law marriage, said Shelly Skeen, senior attorney at LGBTQ rights organization Lambda Legal.

“The same standards should be applied to different-sex couples and same-sex couples, but you should recognize the reality of LGBTQ relationships,” Skeen said. “That’s exactly what the court did.”

 

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