Colorado updates definition of common-law marriage to include LGBTQ + couples – JURIST – News



The Colorado Supreme Court updated the definition of common-law marriage to include LGBTQ + people with three rulings released on Monday. The decisions also retroactively recognize same-sex common-law relationships entered into prior to the Obergefell v. Hodges from 2015.

Common-law marriages are relationships that resemble marriage but lack official documents to verify this union. The existence of a de facto marriage depends on the “mutual consent (…) of a couple to enter into the legal and social institution of marriage, followed by conduct demonstrating this mutual agreement”.

Colorado courts previously used a list of factors called the Lucero Test to judge whether a couple’s conduct meant a common-law marriage. These factors included cohabitation, joint bank accounts and “the use of the man’s last name by the woman or by the children born to the parties”.

Judge Monica Márquez explained that “the sex-differentiated terms and heteronormative assumptions of the Lucero test make it poorly suited for same-sex couples.” She also recognized that customs traditionally associated with marriage “have become less reliable indicators of a marital relationship.” More unmarried couples are living together than before and fewer people are taking their partner’s last name, Marquez noted.

Monday’s decisions replaced reliance on those factors. Under the new criterion, the most important determinant of a common-law marriage is the couple’s agreement to the existence of a marriage. If the couple disagree, their conduct is used to fill in the gaps. But the deciding factors will no longer make or break the existence of a marriage.


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