Common Law Marriage After Lucero: an Update
| Publication year | 1992 |
| Pages | 933 |
| Citation | Vol. 21 No. 4 Pg. 933 |
1992, May, Pg. 933. Common Law Marriage After Lucero: An Update
Colorado is one of thirteen states, including the District of Columbia, that continue to recognize common law marriage. Unless a state has passed a statute specifically forbidding common law marriage, such a marriage is valid.(fn1) However, the vast majority of states have abolished common law marriage by statute or recognize only those common law bonds that have occurred in a state permitting such de facto marriages.
This article updates the information published in a 1987 article in The Colorado Lawyer, entitled "Common Law Marriage in Colorado."(fn2) In that article, the author characterized common law marriage as the creation of a valid marriage by two parties without the benefit of a formal legal ceremony performed according to the requirements of CRS § 14-2-101 et seq. Subsequent to the publication of that article, the Colorado Supreme Court issued its important People v. Lucero(fn3) decision, which further clarifies the law in Colorado. This article focuses primarily on the impact of Lucero and its progeny.
In Lucero, the defendant was convicted of attempted robbery and conspiracy to commit robbery. He appealed, claiming the court erred in allowing testimony from a woman whom he alleged was his common law wife. The defendant sought to invoke the spousal privilege protection in CRS § 13-90-107(1)(a). The Court of Appeals held that the evidence established a common law marriage as a matter of law and that admission of the woman's testimony was reversible error. However, the Colorado Supreme Court found that the trial court's ruling lacked sufficient detail to allow the appellate court to determine this issue. The Supreme Court reversed and remanded the case for specific findings in light of the standards outlined by the Supreme Court.
Although the Supreme Court recognized that "the difficulty of proof is readily apparent"(fn4) in establishing a common law marriage, it proposed two elements for such required proof. The first is that there must be the mutual agreement, consent or intent of the parties to be husband and wife. The second element is a mutual and open cohabitation and public assumption of a marital relationship. Thus, the parties' consent or agreement must manifest itself in mutual public conduct. This element of public acknowledgment is critical in guarding against fraudulent claims of a common law marriage. However, the Supreme Court in Lucero quoted from a treatise on domestic relations and agreed with the suggestion therein that
the rules of evidence have largely supplanted the rules of substantive law.... In short, the existence of a common law marriage has come to depend to a very great extent upon the duration and character of the relationship between the parties.(fn5)
The Supreme Court previously had ruled in Graham v. Graham(fn6) that to establish the agreement, there must be evidence both of cohabitation and reputation. Consent may be inferred from cohabitation in...
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