E.H. and M.N. were same-sex partners from November 2001 to November 2014. Although they never formally married–even after October 2014, when Colorado recognized same-sex marriages before the U.S. Supreme Court did in 2015 with its Obergefell v. Hodges decision–they filed a petition for dissolution of marriage in Colorado’s Arapahoe County District Court. E.H. and M.N. participated in mediation, which resulted in a separation agreement confirming that they had entered into a common law marriage on December 1, 2002.

The separation agreement addressed the division of the property that E.H. and M.N. had accumulated during their relationship such as their home, furniture and household goods, bank accounts, stock purchase plans, retirement plans, vehicles, pets, and other assets. The separation agreement also addressed how their debts and obligations would be divided, and it required M.N. to pay E.H. $1,000 in monthly spousal maintenance for about seven years.

E.H. and M.N. attended the initial status conference in the district court where the judge explained to them that the court would have to first find that a marriage existed before it could consider the petition for dissolution. But the parties told the court that they had already settled all of the disputed issues in their case through mediation, so E.H. and M.N. stipulated to the dismissal of their divorce case.

Some time later, E.H. tried to obtain a portion of the retirement assets and the maintenance payments she believed M.N. owed her as part of their separation agreement. But M.N. told E.H. that she believed they were never married, which prompted E.H. to file a second petition for dissolution of marriage. M.N. then filed a motion to dismiss the petition in which she argued that she and E.H. were never married under Colorado common law.

District Court Hearing

The district court held a hearing on M.N.’s motion where E.H. and M.N. both testified and presented testimony from several of their friends, family, and associates. Some “documentary and photographic evidence” of their relationship was also presented to the district court judge to review. E.H. testified that she and M.N. exchanged wedding rings in a “very intimate close marriage ceremony” at a bar, but M.N. testified that she believed they were simply exchanging “commitment rings.” Furthermore, no family members or friends were present during the “ceremony.”

After hearing all of the evidence, the district court acknowledged that Colorado recognizes common law marriage between same-sex couples, but the court ultimately concluded that E.H. “had not met her burden to prove a common law marriage” existed. The district court explained that while there was “evidence of [an] agreement of a committed relationship,” E.H. and M.N. had different understandings about the purpose and significance of the ceremony where they exchanged rings.

The district court also found that neither E.H. nor M.N. referred to each other as “wife” or described their relationship to others as a marriage. Even though E.H. and M.N. had joint ownership of property, joint banking and credit card accounts, worked with a financial advisor together as a couple, and E.H. identified M.N. as a primary beneficiary and domestic partner on her 401(k) account and as her next of kin and life partner on a medical record, E.H. certified on a health insurance form that she was “not married.” M.N. also never told anyone that she was married, and she never identified herself as being married on any legal, financial, or medical documents.

The district court ultimately found that there was “credible evidence…that [E.H.] believed that she was married to [M.N.],” but there was also “credible evidence that [M.N.] did not believe she was married” to E.H. The district court concluded that E.H. “had not met her burden to establish a common law marriage by a preponderance of the evidence,” and it granted M.N.’s motion to dismiss.

Colorado Court of Appeals Review

E.H. appealed, but the Colorado Court of Appeals agreed with and affirmed the district court’s ruling that “no common law marriage existed” between E.H. and M.N. The court of appeals concluded that there was enough evidence presented in the hearing in the district court for the court to find that while E.H. believed she was married, M.N. did not. The court of appeals also found persuasive M.N.’s testimony that she did not believe in marriage and the lack of any references to marriage in the cards and correspondence E.H. and M.N.’s exchanged with each other.

Colorado Supreme Court Decision

The Colorado Supreme Court accepted E.H. and M.N.’s case because of the importance of the issues presented in their dispute and because it was, at the time, considering two other cases addressing common law marriage, including same-sex common law marriage.

Two Legal Paths to Marriage in Colorado

The Colorado Supreme Court described the two paths that a couple can take to become married in Colorado.

In Colorado, a legally recognized marriage can be achieved two ways:  formally, by fulfilling the statutory requirements of licensed marriage, or informally, by entering a common law marriage through mutual agreement of the parties followed by assumption of a marital relationship.

In re Marriage of Hogsett, 2021 CO 1, ¶ 28 (emphases added)

The supreme court first outlined the criteria for establishing a common law marriage in Colorado in 1987 in a case called People v. Lucero, 747 P.2d 660 (Colo. 1987). But the court believed that the criteria established in the Lucero decision was “underinclusive,” so it was time to update the common law marriage criteria to reflect the “social and legal changes” that have occurred since 1987, specifically the recognition of same-sex marriage as a fundamental and constitutional right. The supreme court noted that “the factors we identified in 1987 have become, over time, less reliable markers to distinguish marital from nonmarital relationships” and specifically as they relate to “evaluating a same-sex relationship, particularly one predating Colorado’s recognition of same-sex marriage.” Hogsett, ¶ 36.

Proving a Common Law Marriage in Colorado

In connection with its consideration of E.H. and M.N.’s case, the Colorado Supreme Court announced new, updated rules to guide all Colorado courts in determining whether a common law marriage has been established between a couple–regardless of whether the purported marriage is a different-sex or same-sex marriage.

We therefore hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The key question is whether the parties mutually intended to enter a marital relationship–that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.

Hogsett, ¶ 49 (emphasis in original)

In considering whether a common law marriage exists, courts should “give weight to evidence” demonstrating a couple’s express agreement to marry. But if there is no evidence of an express agreement to marry, courts can find that an agreement between parties to enter a marital relationship can be inferred from their conduct.

There are many factors that a Colorado court can consider to be evidence of a couple’s intent to be married, including:

• the parties’ cohabitation;
• reputation in the community as spouses;
• maintenance of joint banking and credit accounts;
• purchase and joint ownership of property;
• filing of joint tax returns;
• use of one spouse’s surname by the other or by children raised by the parties;
• shared financial responsibility such as leases in both partners’ names;
• joint bills or other payment records;
• joint estate planning, including wills, powers of attorney, and beneficiary and emergency contact designations;
• symbols of commitment such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another; and
• the parties’ sincerely held beliefs regarding the institution of marriage.

While “the manifestation of the parties’ agreement to marry need not take a particular form[,]…a mutual agreement to marry does not alone suffice; there must be evidence of subsequent conduct manifesting that agreement.” Hogsett, ¶¶ 49, 50. And although Colorado courts can continue to look to the parties’ conduct “for evidence of an implied agreement to marry[,] the inferences to be drawn from the parties’ conduct will vary depending on the circumstances.”

These are “difficult, fact-intensive inquiries” that Colorado courts must undertake, because the presence of one factor may be persuasive that a common law marriage existed while the absence of one factor may be persuasive as well. And “the significance of a given factor will depend on the individual, the relationship, and the broader circumstances, including cultural differences.”

Application of the Common Law Marriage Test to E.H. and M.N.’s Case

After applying its revised common law marriage framework to E.H. and M.N.’s relationship, the Colorado Supreme Court agreed with and affirmed the district court’s conclusion that E.H. and M.N. did not mutually intend to enter into a common law marriage.

No Express Agreement to Marry

The Colorado Supreme Court agreed that E.H. and M.N. had different interpretations of what exchanging rings meant to them and why it did not establish an express agreement to marry. For example,

• E.H. and M.N.’s exchanging of rings occurred in a bar where only bar patrons were present;
• E.H. could not confirm the exact date of the ring exchange;
• M.N. testified that they exchanged rings only “[t]o express commitment to the relationship,” that it was “nothing significant,” and no family or friends were present; and
• while the “exchanging of rings” may have demonstrated the parties were in a committed relationship, E.H. and M.N. each had a different interpretation about the significance of the act.

Presence and Absence of Conduct Manifesting an Agreement to Marry

The Colorado Supreme Court also agreed that E.H. and M.N.’s actions–considered as a whole and in the context of their relationship–did not support a conclusion that an agreement to marry could be inferred. For instance,

• E.H. and M.N. never celebrated the date of the ring exchange as an anniversary;
• they did not wear their rings consistently;
• they never referred to each other as wife or mentioned marriage in letters and cards they gave to each other; and
• while E.H. testified that she had the intent to enter a marital relationship, the evidence supported M.N.’s position that she did not.

All three Colorado courts that considered E.H. and M.N.’s case agreed that M.N. was credible when she testified that she personally “do[es]n’t believe in marriage” because she “do[es]n’t believe two people can promise each other that they’re going to love each other for the rest of their lives.” Even E.H. acknowledged that M.N. had told her this as well. Therefore, the Colorado Supreme Court agreed that E.H. and M.N. never entered into a common law marriage.

Lessons Learned

• A different-sex or same-sex couple can establish a common law marriage in Colorado first by demonstrating a mutual consent or agreement to be married.
• The couple’s mutual consent or agreement to be married must be followed by conduct manifesting that mutual agreement.
• The key inquiry is whether the couple intended to enter a marital relationship, which means to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.
• The couple’s agreement to marry does not have be in a particular form; it can be an express agreement or an agreement that can be inferred from the couple’s actions.
• The Colorado Supreme Court’s updated and refined common law marriage test “reflects that it is more difficult today to say that a court will know a [common law] marriage when it sees one.”