Colorado Common Law Marriage: The Surprising Legacy of an Old English Law
What Is Common Law Marriage?
Potential clients often ask if they can file for common law marriage. “We were never married, but…” is usually how these conversations start. They share details about jointly filed tax returns, exchanging rings, family or friends who swore they were married, and years of living together. They usually end with, “So that means I can file for divorce, right?” I don’t interrupt and instead take note of anything that catches my (legal) eye. Well, no, not exactly. Common law isn’t just about living together, or even filing joint returns, anymore. Let’s start with the basics: what the heck is common law marriage and where does it come from?
The Origins of Common Law Marriage
In Colorado, the roots of common law lie in a curious statute: C.R.S. 2-4-211. This law states:
The common law of England, insofar as it is applicable and of a general nature, and all acts and statutes of the British Parliament, made to support or amend the common law prior to the fourth year of James I—excepting certain sections of statutes under Elizabeth and Henry VIII—shall be the rule of decision and shall remain fully in force until repealed by legislative authority.
In essence, English common law holds sway in Colorado unless directly repealed by state legislature. And in England, common law carried some unusual traditions—one being common law marriage. This practice dates back to the 1800s, when English law required a formal church ceremony to validate a marriage. Common law marriage emerged as a workaround, enabling couples to wed informally, without the Church’s sanction.
Although the concept of common law marriage remains part of Colorado’s legal heritage, simply living together no longer grants married status. Still, the legacy of informal marriage practices endures, reminding us of a time when English common law shaped personal relationships in ways that persist today.
Is Cohabitation Enough?
Common law marriage presents a complicated legal issue. Many unmarried couples still file joint taxes, hoping for deductions and assuming the IRS won’t audit them. Until 2021, establishing common law marriage in Colorado followed a simpler path. Couples could select a meaningful relationship date—an anniversary or a small, unofficial ceremony—and file for divorce on that basis. For years, courts accepted evidence like joint tax returns, a ring or two, and a witness who believed the couple was married.
How Did the Law Change?
In 2021, the Colorado Supreme Court tightened the requirements for common law marriage in three pivotal cases. Today, anyone filing for common law marriage must prove mutual intent to marry. In other words, both parties must genuinely believe they are married. This requirement poses challenges; proving mutual intent is similar to establishing mens rea in criminal law (a “guilty mind”). The Supreme Court justified this change by noting that anyone who wants to marry now has a legal pathway to do so. Past barriers—such as restrictions for people of color or queer couples—no longer apply. In these rulings, one justice even questioned whether Colorado should eliminate common law marriage altogether.
Should You Talk to a Lawyer?
If you’re thinking, “We were never married, but we were common law married,” consider consulting a local family lawyer. We’re here to help. For more insight, check out my handbook, available on Amazon in paperback and Kindle.
