Supreme Court revisits test for common law marriage.

In Hogsett v. Neale, the Colorado Supreme Court (the Supreme Court) revisits the test for proving a common law marriage that was articulated in People v. Lucero, 747 P.2d 660 (Colo. 1987). In the original Lucero test, the court 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.” Id. Evidence of that 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. Id. Because of social and legal changes, particularly in light of the recognition of same-sex marriage, many of the indicia of marriage identified in Lucero are now less reliable.

The Supreme Court refined the test and held 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 inquiry is whether the parties intended to enter a marital relationship (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, the 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 by their conduct. The factors identified in Lucero can still be relevant, but they must be assess in the context of the couple’s circumstances.

In this case, the Supreme Court applied the refined Lucero test and concluded that no common law marriage existed. The Supreme Court therefore affirmed the judgment of the Colorado Court of Appeals.


Hogsett v. Neale, 478 P.3d 713 (Colo. Jan. 11, 2021)

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March 2021 Newsletter