Currently, only eight states allow for and recognize common-law marriages. Colorado is one of those states. Many others no longer allow for common-law marriages because they can be problematic. In fact, couples who find themselves in a common-law marriage may need to divorce when they break up. However, the parties might have different views on whether they are in a common-law marriage. Without official documentation, determining that the couple is married may require complex analysis.

The Colorado Supreme Court looked at the state's law and chose to expand the definition to include LGBTQ couples. While the move aims to establish fairness for all the different types of couples and families, some argue that rather than modifying the definition of common-law marriages, Colorado should eliminate them.

How Colorado's Definition of Common-Law Marriage Changed

Colorado's common-law marriage requirements were decades old and included conditions that no longer make sense for many modern couples. The previous law dated back to 1987 and stated that a court might consider a couple to be married if they acted as if they were married, owned property jointly, filed taxes together, and the woman used the man's last name.

The law included an obvious gender bias, but it also assumes that common-law marriages will look the same in each case when in reality, the arrangements likely differ a great deal. For instance, when it comes to LGBTQ couples, labels may mean different things. Concerns over publicly announcing a marriage or using the term "spouse" might stem from fears of discrimination rather than any desire to avoid entering a marriage.

Courts can still consider many of the factors that they previously used to determine whether the couple is married under common law, like whether they bought a house together or are raising children. However, now there is no longer a checklist that judges must use to make their decisions. In its ruling, the Court noted that the former list would fail to apply to many legal unions because of the outdated assumptions about married life. The new law will force judges to look at each individual matter based on the specific facts.

The decision will likely make it more difficult to determine whether a couple is married, and rulings might become less consistent because of the Court's decision. One of the Justices, Melissa Hart, stated in a concurring opinion that the state would be better off abolishing common-law marriage entirely because it is unnecessary, inconsistent, and unpredictable.

Why The Marital Designation Matters

Common-law marriage developed to protect women living in a marriage-like relationship with a man. Couples with such arrangements might include a man who works and pays for the house, and a woman who cleans, cooks, and potentially cares for children. If the parties break up and are not married or considered married under common law, the woman would have no rights to any property or spousal support.

Additionally, if the man died, the woman might not have the ability to inherit anything or collect social security benefits. The scenario could create tragic cases for unmarried dependent partners.

In states with common-law marriages, a partner who wants to claim that they were married is often the one who will suffer financially from the separation. The spouse with the financial power may want to unfairly deny that they maintained a marriage-like relationship to prevent having to part with some of the property wealth. Courts may have to evaluate details of the couple’s lives together to determine whether they were married.

Some couples spend years in court trying to litigate their side of these arguments. Evidence may include everything from tax returns to how relatives addressed the couple in their holiday greeting cards. Given the wide range of evidence used in such matters, the risk of inconsistent rulings is high.

Should We Abolish or Expand Common-Law Marriage

Getting married is not particularly difficult. Some people argue that if a couple wants the court to treat them like they are married, they should just get married. However, unmarried cohabiting couples are increasing in America and other countries around the world. Although common-law marriage might lead to inequitable results, perhaps the best solution is to improve the laws surrounding these relationships rather than eliminate them. Not providing a way to separate assets when a couple cohabits for many years can also lead to inequitable results.

Canada and Norway both provide laws for dividing property when cohabiting couples are unmarried. Some states now also have such laws. Perhaps there are better ways to manage property division and create fairness for couples who choose not to marry but become financially intertwined.

Whether the right move is to take away common-law marriage or expand protections for unmarried couples, Colorado's decision does get some things right. If the state chooses to maintain common law marriage, it should not favor couples living in a way that matches traditional and outdated stereotypes over the many other partners that live similarly to modern married couples. The Supreme Court found that LGBTQ couples have a constitutional right to get married. If common-law marriages are legally indistinguishable from other marriages, they should also apply to same-sex couples.