The Colorado Supreme Court updated the definition of common-law marriage to include LGBTQ+ individuals with three rulings handed down on Monday. The decisions also retroactively recognize same-sex common-law marriages entered into before the 2015 Obergefell v. Hodges decision.
Common law marriages are relationships that resemble marriage but lack official records to verify that union. Whether a common law marriage exists depends on a couple’s “mutual consent … to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.”
Colorado courts previously used a list of factors called the Lucero test to judge whether a couple’s conduct signified a common-law marriage. These factors included cohabitation, joint bank accounts and “use of the man’s surname by the woman or by children born to the parties.”
Justice Monica Márquez explained that “the gender-differentiated terms and heteronormative assumptions of the Lucero test render it ill-suited for same-sex couples.” She also recognized that customs traditionally associated with marriage “have become less reliable indicators of a marital relationship.” More unmarried couples are living together than before and fewer people are taking their partner’s last name, noted Márquez.
Monday’s rulings replaced the reliance on these factors. Under the new test, the most important determinant of a common-law marriage is the couple’s agreement upon the existence of a marriage. If the couple does not agree, their conduct is used to fill in the gaps. But bright-line factors will no longer make or break the existence of a marriage.