"A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of the marital relationship." People v. Lucero, 747 P.2d 660, 663 (Colo. 1987); quoting Klipfel's Estate v. Klipfel, 41 Colo. 40, 46, 92 P. 26, 27-28 (1907) ("[I]n this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding.); quoting Taylor v. Taylor, 10 Colo. App. 303, 304-305, 50 P. 1049 (1897).
The Taylor Court required both mutual consent or agreement on the part of the parties to be married, and consummation, i.e., cohabitation as husband and wife. Id., 10 Colo. App. at 305, 50 P. at 1049.
The Court in People v. Lucero, 747 P.2d 660, 663-664 mandated "mutual public acknowledgement of the marital relationship" as essential to the establishment of a common law marriage, thus injecting the proceeding to determine the validity of a common law marriage with the necessity of presenting some objective evidence as to the existence of the marriage.
"Cohabitation" has been defined by one Court as "holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the man and woman have agreed to take each other in marriage and to stand in the mutual relation of husband and wife." Smith v. People, 64 Colo. 290, 294, 170 P. 959 (1918).
"General reputation or repute" has been defined by one Court as "the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife..." Taylor v. Taylor, 10 Colo. App. 303, 305, 50 P. 1049 (Colo. App. 1897).
The statutory requirements for a common law marriage in Colorado are set forth in C.R.S. § 14-2-109.5: (a) each party to the marriage must be eighteen (18) years of age or older; and (b) the marriage is not prohibited by the provisions of C.R.S. § 14-2-109.5 (pertaining to bigamy and incest).
In sum, a very detailed factual investigation and analysis, pro and con, of all factors influencing the existence or non-existence of a common law marriage will have to be undertaken, and even then, the decision with respect thereto will be left in the sound discretion of the Court.
The person claiming a common law marriage has the burden of proof to demonstrate that there is a common law marriage. Valencia v. Northland Ins. Co., 514 P.2d 789 (Colo. App. 1973).
"[E]vidence to establish a common law marriage should be clear, consistent and convincing." Peery v. Peery, 150 P. 329 (Colo. App. 1915). It has also been said that a common law contract of marriage must be established by "convincing and positive evidence." Klipfel's Estate v. Klipfel, 41 Colo. 40, 49, 92 P. 26, 29 (1907).
There is no single form that evidence of a common law marriage must take. People v. Lucero, 747 P.2d 660, 665 (Colo. 1987). "Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred." Id.
Whether a common law marriage exists turns on the issues of fact and credibility. See, In re Custody of Nugent, 955 P.2d 584, 588 (Colo. App. 1997).
Through late December, 1987, People v. Lucero, 747 P.2d 660, 664-665 (Colo. 1987) succinctly stated:
The very nature of a common law marital relationship makes it likely that in many cases express agreements will not exist. The parties' understanding may be only tacitly expressed, and the difficulty of proof is readily apparent. We have recognized that "the agreement need not have been in words," Smith v. People, 64 Colo. 290, 293, 170 P. 959, 960 (1918); see also Rocky Mountain Fuel Co. v. Reed, 110 Colo. 88, 130 P.2d 1049 (1942), and the issue then becomes what sort of evidence is sufficient to prove the agreement. We have stated that if the agreement is denied or cannot be shown, its existence may be inferred from evidence of cohabitation and general repute. See, e.g., Graham v. Graham, 130 Colo. 225, 227, 274 P.2d 605, 606 (1954); James v. James, 97 Colo. 413, 414, 50 P.2d 63, 64 (1935); Smith v. People, 64 Colo. at 293, 170 P. at 960; Klipfel's Estate v. Klipfel, 41 Colo. at 46-47, 92 P. at 28. In such cases, the conduct of the parties provides the truly reliable evidence of the nature of their understanding or agreement.
Thus, as the standards governing common law marriage have been applied, the line between the two elements has become obscured. Courts have increasingly relied on the conduct of the parties to infer that an agreement also existed. As Professor Clark suggests, "the rules of evidence have largely supplanted the rules of substantive law as a means of determining the existence of common law marriage.... In short, the existence of common law marriage has come to depend to a very great extent upon the duration and character of the relationship between the parties." H. Clark, Law of Domestic Relations 49-50 (1968). Professor Clark also points out that this makes sense in light of the policy reasons underlying the continued recognition of common law marriage, which today serves mainly as a means of protecting the interests of parties who have acted in good faith as husband and wife.
Our formulations of the requirement of conduct manifesting or confirming the parties' understanding or agreement have taken many forms. See, e.g., Graham v. Graham, 130 Colo. at 227, 274 P.2d at 606 (to establish the agreement there must be evidence both of cohabitation and reputation); In re Estate of Danikas, 76 Colo. 191, 194, 230 P. 608, 610 (1924) (illicit cohabitation will not support reputation as proof of marriage; reputation alone is not enough); Smith v. People, 64 Colo. at 294, 170 P. at 960 (consent may be inferred from cohabitation and repute; cohabitation is "holding forth to the world by the manner of daily life, by conduct, demeanor, and habits, that the man and woman have agreed to take each other in marriage and to stand in the mutual relation of husband and wife."); see Taylor v. Taylor, 10 Colo. App. at 305, 50 P. at 1049 (1897) (agreement may be presumed from evidence of cohabitation and repute; general reputation or repute means "the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife....") The two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife. Specific behavior that may be considered includes maintenance of joint banking and credit accounts; purchase and joint ownership of property; the use of the man's surname by the woman; the use of the man's surname by children born to the parties; and the filing of joint tax returns. See Mills, Common Law Marriage in Colorado, 16 Colo. Law. 252, 257 (1987). However, there is no single form that any such evidence must take. Rather, any form of evidence that openly manifests the intention of the parties that their relationship is that of husband and wife will provide the requisite proof from which the existence of their mutual understanding can be inferred. (Emphasis added.)
The Colorado Court of Appeals, in Dareuskaya v. Shtutman (In re Estate of Yudkin), 2019 COA 25 (Feb. 21, 2019), provided guidance with respect to the necessity of presenting "specific behavior" evidence to establish the existence of a common law marriage. Essentially, the Court said that if the three elements or essential factors: (1) agreement to be married; (2) cohabitation; and (3) a reputation in the community as husband and wife, are met, the inquire ends, a common law marriage has been established. When either the elements of cohabitation or reputation in the community are not "clearly" established, the Court may consider "specific behavior" of the parties, such as the filing of joint income tax returns, etc. "[A]ny actions taken (or not taken) by the parties not bearing on the essential factors are, if the essential factors are established, legally irrelevant." Id. at P.16.
There certainly may be an overlap in evidence. For example, if the "agreement" is not susceptible to easily presented "clear" evidence, it may be proved by circumstantial evidence. Some of the more common factors which courts have considered, include, without limitation:
1) The testimony of the parties;
2) Whether a spouse is still receiving spousal maintenance or alimony from a prior spouse;
3) The parties living together;
4) The title to property (real and personal);
5) Whether there are joint or separate bank accounts (co-mingled assets);
6) Whether both parties contribute financially to the household;
7) Whether the parties maintain single policies of insurance (auto, health, dental) that insure both of them (Court's will look at the intent of the parties - to recognize the relationship v. an intent to commit fraud);
8) Joint or separate income tax returns;
9) Whether the parties use a common surname;
10) Whether child(ren) of the relationship use the "married" name;
11) Whether the parties are held out as the parents of the child(ren);
12) Whether estate planning documents hold the parties out as husband and wife;
13) How the parties have held themselves out to government agencies, such as the Department of Social Services;
14) The testimony of witnesses;
15) Whether the party(ies) wear wedding bands;
16) Birthday / Anniversary Cards;
17) Social media accounts (Facebook; Instagram; etc.);
18) Whether the parties have signed an affidavit of common law marriage;
19) Whether the parties are represented as husband and wife on loan documentation;
20) Whether the parties are represented as husband and wife on Medicaid applications / Social Security Administration applications;
21) Prior testimony of one or both parties in unrelated proceedings;
22) Whether a party had sexual relations with another during the alleged marriage;
23) Whether the parties had sexual relations.
"Common law marriages have also been recognized in Colorado when a previously married couple cohabitates and again holds themselves out as husband wife. In these circumstances, the policy of disfavoring divorce and encouraging resumption of the marital relationship dictates that lesser proof be required to establish common law remarriage than common law marriage." In re Frawley, 112 B.R. 32, 34 (Bankr., Dist. Colo. 1990), citing In re Estate of Peterson, 148 Colo. 52, 365 P.2d 254 (1961).
The Colorado Supreme Court has held that the standard of proof to establish a common law remarriage in Colorado is less "exacting and scrupulous" than for common law marriage. In re Estate of Peterson, 148 Colo. 52, 365 P.2d 254 (1961). See also Ward v. Terriere, 153 Colo 326, 332, 386 P.2d, 352, 355 (1963) (Peterson "holds that the evidence in such cases may be less than the positive and convincing proof necessary to establish a common law marriage.").
In In re Estate of Peterson the Court stated the two issues as:
Is the law as exacting and scrupulous respecting the proof necessary to establish a common law remarriage as it is regarding the proof required to make out a case of common law marriage?
Does the policy of the law disfavoring divorce and encouraging resumption and continuance of the marital tie enjoin relaxation in the matter of proof where the question of remarriage is involved?
The Peterson Court, at P.2d 256, answered both questions in the affirmative, stating:
An often quoted statement from Hynes v. McDermott, 91 N.Y. 451, 43 Am. S.R. 67, is persuasive in our determination, particularly since it represents the essence of what this court has said in a number of decisions involving remarriage -- Githens v. Githens, 78 Colo. 102, 239 Pac. 1023, 43 A.L.R. 547; Jordan v. Jordan, 105 Colo. 171, 96 P. (2d) 13; Shreyer v. Shreyer, 113 Colo. 219, 155 P. (2d) 990. It was there said, "The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy."
The law has been resourceful in developing policies which give stability to the marriage state and seek to preserve it as a basic institution in our society. So important is the marital relation that the state is said to be an unnamed but vitally interested party in all actions affecting its existence. It is the policy of the law to encourage the permanency and continuity of a marriage and to look with disfavor upon its dissolution. Githens v. Githens, supra.
"Remarriage is sufficiently rare in human affairs to justify regarding it as sui generis." In re Wagner's Estate, 398 Pa. 531, 159 A. (2d) 495 (1960). Thus regarded, Justice Bok fittingly distinguished between a common law marriage and a common law remarriage in these words:
"These doctrines are familiar enough. We are, however, not dealing with a first marriage but with a remarriage following divorce after twenty years of wedlock. In such case we think that the law's role of mere toleration of the common law relationship should be reversed and the status of remarriage favored, even if acquired with common law informality. If the law allows a spouse, in the generous amount of nine reasons, to establish by divorce that the marriage was a mistake, it should be at least equally eager to let both spouses discover that their divorce was also a mistake. We regard it better to encourage remarriage than to leave such parties under judicial edict that they were living sinfully together for ten years. If children had been born of this relationship, the wisdom of regularizing it if possible would be all the more apparent."
Stating what is likely the obvious, if you are married, you are married. Married persons, whether married at common law, remarried at common law, or ceremonially married, enjoy all of the same rights, privileges and obligations.