The Interrelationship Between Same-Sex and Common Law Marriage

By: Curtis Wiberg

In 2014, the United States Supreme Court legalized same-sex marriage in Obergefell v. Hodges, 135 S.Ct 2071 (2015), and no state in the United States is able to deny the right to a same-sex couple to get married.

So, while the law seems clear as to what the Obergefell case means going forward, did the Obergefell case convert same-sex relationships that existed prior to Obergefell in states that recognize common law marriage?

In Colorado, the case that most clearly defines what constitutes a common-law marriage is the case of People v. Lucero, 747 P.2d 660 (Colo. 1987). Lucero articulates that there must be a mutual understanding between the parties to a relationship that the parties consider themselves to be married. Courts looking at whether the parties to a relationship have this mutual understanding look to such things as cohabitation, whether the parties file tax returns as married or single, whether on party takes the other party’s last name, whether there was an understanding amongst friends and families that a couple considered themselves to be married, and whether there was an intermingling of finances.

Many of the foregoing, like filing of tax returns as “married” or the taking of the other party’s last name were unavailable to same-sex relationships because various states, including Colorado, simply did not afford a same-sex couple the opportunity to demonstrate the kinds of indicia of common-law marriage that the Lucero court takes into consideration.

Nonetheless, the Lucero court is clear that the parties must have the mutual understanding that their relationship is one as a married couple during the relationship. Can a couple even have that understanding if they were aware that their relationship was not legally recognized until the Obergfell decision? It would be impermissible for a Court, or one of the parties to a relationship to surmise that the parties would have gotten married had that option for a same-sex relationship existed. What Lucero demands is that the parties had that mutual recognition at the time the common-law marriage is alleged to have been formed.

The party that may try to have a court recognize their relationship prior to the Obergfell decision certainly has a difficult task in showing a mutual understanding during their pre-Obergfell relationship that they considered themselves married, but it may not be impossible. For one, if both parties told family and friends that they considered themselves married despite the law, that would help meet the burden required by Lucero. Did the parties have cards or love letters where they referred to each other as spouse or of their relationship as a marriage? For a Colorado couple, it’s important to note that a handful of other states, including Massachusetts, Iowa and Hawaii did recognize the legality of same-sex marriage dating back to as early as 2004 – 10 years before Obergefell— and if a Colorado couple sought to participate in a ceremony in one of these other states, that too would help a couple establish a common-law marriage under the factors set forth in Lucero.

In a divorce case, a court could also look to see if the parties began referring to themselves as married, or filed tax returns as “married” or otherwise began to otherwise seek legal recognition of their relationship as a married couple once Obergefell removed the legal impediment to recognition of same-sex marriage. In other words, if a party did not change how they referred to their relationship after Obergfell than how they referred to their relationship pre-Obergefell, it would then be very hard to argue that the parties ever considered themselves to exist as a married couple.