In re Marriage of Hogsett & NealeAnnotate this Case
The Colorado Supreme Court has previously held that a couple could establish a common law marriage “by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” The Court advised that evidence of such agreement and conduct could be found in: a couple’s cohabitation; reputation in the community as husband and wife; maintenance of joint banking and credit accounts; purchase and joint ownership of property; filing of joint tax returns; and use of the man’s surname by the woman or by children born to the parties. In this case, a dispute arose over a common law marriage claim. Notably in this case, because same-sex couples could lawfully marry, the gender-differentiated terms and heteronormative assumptions found in the case law were "ill-suited" for same-sex couples. "The lower court decisions in these cases reflect the challenges of applying Lucero to these changed circumstances." The Supreme Court refined the Lucero test to 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 core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple’s express agreement to marry. In the absence of such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. When examining the parties’ conduct, the factors identified previously in Colorado case law can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties’ conduct may vary depending on the circumstances. Finally, the manifestation of the parties’ agreement to marry need not take a particular form. Applying these factors to the parties' case here, the Supreme Court determined no common law marriage existed here.