Pre-2014 Same- Sex Common-Law Marriages Should Federal Precedent Apply Retroactively?, 1218 COBJ, Vol. 47, No. 11 Pg. 42
| Author | By LISA M. DAILEY AND JOEL M. PRATT |
| Position | Vol. 47, 11 [Page 42] |
FAMILY LAW
By LISA M. DAILEY AND JOEL M. PRATT
This article considers the effect of federal precedent on pre-2014 same-sex common-law marriage claims in the context of divorce and probate issues.
Common-law same-sex marriage presents a wrinkle in the family law landscape. When federal courts removed impediments to same-sex marriage, Colorado began to recognize such marriages immediately. But what about common-law same-sex marriages entered into before Colorado recognized same-sex marriages? This article looks at legal and practical issues practitioners may face in same-sex common law marriage situations, with a focus on the retroactive application of federal decisions "legalizing" same-sex marriage. It sets out Colorado law regarding common-law and same-sex marriages; describes statutory and constitutional retro activity, including arguments for and against; and discusses some practical considerations in litigating these cases.
Common-Law Marriage in Colorado
Colorado is one of a minority of states that recognizes common-law marriage.1 The Colorado statutes recognize common-law marriages entered into after September 1, 2006 if both parties are 18 or over and the marriage is not prohibited (i.e., bigamous or incestuous),[2] though common-law marriages are limited to opposite-sex couples.3 The Colorado Constitution limits marriage to "a union of one man and one woman."4
Provided there is no legal impediment to marriage, a common-law marriage arises upon "the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship."5 In other words, under Colorado's Constitution, statutes, and common law, if a man and a woman agree to be married and hold themselves out as married, they are entitled to the privileges and are burdened with responsibilities of legal marriage. If one party claims the existence of a common-law marriage and the other disagrees, courts resolving the contested claim consider factors such as cohabitation, reputation among community members, co-mingled finances, joint property ownership, name sharing, and the filing of joint tax returns.6
Same-Sex Marriage in Colorado
Colorado's statutes still limit marriage to one man and one woman.7 This prohibition applies to common-law as well as formalized marriages.8 But federal courts have declared state bans on same-sex marriage to be unconstitutional. In 2014, the U.S. Court of Appeals for the Tenth Circuit determined in Kitchen v. Herbert that the Fourteenth Amendment protects the right of same-sex couples to marry.9 In 2015, the U.S. Supreme Court decided Obergefell v. Hodges.10 Writing for the 5-4 majority, justice Kennedy stated in closing:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.[11]
With those words, the Supreme Court determined that state bans on same-sex marriage violated the U.S. Constitution. Thus, the portions of CRS § 14-2-104 and the Colorado Constitution that limit marriage to opposite-sex couples are unconstitutional and unenforceable, at least from the date Kitchen was decided.
How Will Colorado Treat Same-Sex Couples?
It is an open question how same-sex couples who entered into common-law marriages before Kitchen will be treated in Colorado legal proceedings. The answer depends on whether Kitchen and Obergefell apply retroactively to common-law marriage claims. For such couples, the issue of retro activity may be dispositive of their dissolution of marriage or probate case. If Kitchen and Obergefell are retroactive, such claims may be pursued. If not, the statutory bans on such unions in place at the time the marriage arose would invalidate such marriages and foreclose the question of divorce or inheritance, at least without a legal instrument such as a cohabitation agreement or a will.
There are two kinds of retroactivity, statutory and constitutional. Colorado courts determine retro activity according to a three-part test.
Statutory Retroactivity
Whether a statute will be applied retroactively depends on whether it is substantive. When a statute is substantive in nature, the courts presume the statute applies prospectively only.12 Further, the Colorado Constitution expressly prohibits retrospective application of certain kinds of substantive laws.13
This rule has a logical basis. While people can be expected to conform their conduct to current law, they cannot be expected to conform their conduct to an as yet unknown future law. Further, prospective application of a statute is generally sufficient to meet the legislature's goals because legislatures typically act in response to public opinion, a change in political control, or new facts or problems. In such situations, retroactive application is typically unnecessary.
There is also an administrative basis for prohibiting retroactive application of substantive legal changes: avoiding a flood of attempts to reopen old lawsuits. If every civil suit could be re-litigated when the law changes, the courts' dockets would quickly become unmanageable, not to mention the uncertainty and chaos that would ensue regarding the status of previously established legal rights.
Thus, the general rule prohibiting retroactive application of statutes is understandable, and it is likely that same-sex common-law marriages pre-dating 2014 would not be held valid in Colorado had the legislature changed Colorado law to legalize same-sex marriage.
Constitutional Retroactivity
By contrast, substantive constitutional changes may apply retroactively.14 The issue most...
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