Colorado Supreme Court to Clarify Common Law Marriage for Same-Sex Couples
One ex-partner says the couple had common law marriage, other says they didn’t

by Julia Cardi

The U.S. Supreme Court legalized same-sex marriage in 2015, but questions linger about whether it’s appropriate to apply established standards for common law marriages to same-sex couples. LAW WEEK FILE PHOTO

Obergefell v. Hodges in 2015 guaranteed equal rights for same-sex couples to get married, but can treating same-sex couples exactly equal in the context of common law marriage actually have a discriminatory effect?

A party in a Colorado case argues  yes, and the Colorado Supreme Court has agreed to decide how to analyze whether a same-sex couple has a common law marriage.

The Supreme Court on Sept. 30 granted a petition to hear In re the Marriage of Edi Hogsett and Marcia Neale. In their case, the Arapahoe County District Court used an established test to decide the couple did not have a common law marriage. The Court of Appeals affirmed the decision and noted the district court’s conclusion assumes the U.S. Supreme Court’s Obergefell decision can apply retroactively to find a same-sex common law marriage. Now, Hogsett has appealed the decision finding she did not have a common law marriage with Neale.

Partners’ intent is key when courts look at their relationship to see if they have a common law marriage. The existing test for establishing a common law marriage, known as the Lucero test, looks at mutual agreement to be husband and wife and the couple’s mutual open assertion of their marital relationship. The relationship has to meet both elements for a common law marriage to exist.

To read the rest of this story and other complete articles featured in the Oct. 7, 2019 print edition of Law Week Colorado, copies are available for purchase online.