Judge's gavel on a rainbow-flag colored U.S. Constitution.

This big common law marriage case (one of three common law marriage decisions issued by the Colorado Supreme Court on January 11, 2021) is another legal victory for the LGBTQ community, in that it found a couple could be found to have been in a same-sex common law marriage even before same-sex marriages were legal in Colorado. Now gays and lesbians have the same protections, and the same risks, of common law marriage which the heterosexual community has taken for granted for decades.

In LaFleur,1In re: Marriage of LaFleur, 2021 CO 3. the Colorado Supreme Court affirmed the ruling of both lower courts that same-sex couples could enter into a common law marriage even before it was lawful to do so.

For discussions of the other two decisions from the same day:

  • Hogsett2In re: Marriage of Hogsett, 2021 CO 1., which as we discuss in this blog post, has upended the 33 year-old Lucero3People v. Lucero, 747 P.2d 660 (Colo. 1987). standard for determining whether a common law marriage exists (and while Hogsett itself happens to involve a same-sex couple, its ruling applies to all common law marriages).
  • Yudkin,4In re: Estate of Yudkin, 2021 CO 2. where, as we discuss in our blog post, the Court held that a common law marriage inquiry must consider the couple’s intent behind their conduct, and not reject the existence of a marriage because a couple did not conform to potentially outdated societal norms of marriage which may be culturally irrelevant to a particular couple.

Pre-Legalization Same-Sex Common Law Marriage Claim

Same-sex common law marriage ban.Same-sex common law marriage ban.
Same-Sex marriage ban.

Same-sex marriage was not legalized in Colorado until 2015, with the Obergefell5Obergefell v Hodges, 576 U.S. 644 (2015). decision from the U.S. Supreme Court. (Strictly speaking, the same-sex marriage ban ended in certain western states, including Colorado, with Kitchen,6Kitchen v. Herbert, 755 F.3d 1193, 1229-30 (10th. Cir. 2014). a 10th Circuit decision from 2014, and its progeny, but those decisions were stayed until SCOTUS ruled in the then-pending Obergefell case).

The issue confronting the Court in LaFleur was whether a couple could intend to be married at a time when their same-sex marriage would have been illegal. The Colorado Supreme Court concluded that courts may recognize a common law same-sex marriage entered into in Colorado prior to the state recognizing same-sex marriage.

Unconstitutional Statute is Void Ab Initio

When a law is struck down as unconstitutional, as Obergefell did to same-sex marriage bans,

“The general rule is that a statute that is declared unconstitutional is void ab initio; it is inoperative as if it had never been enacted. Consequently, state law restrictions held unconstitutional in Obergefell cannot serve as an impediment to the recognition of a same-sex marriage predating that decision. Indeed, recognition of a same-sex marriage is the remedy for a state’s earlier violation of the couple’s constitutional rights. Moreover, because Obergefell held that states must allow same-sex couples to enter marriages on the same terms and conditions as different-sex couples, and because Colorado recognizes common law marriages between different-sex couples, it therefore must also recognize such marriages between same-sex couples-including those entered into pre-Obergefell.”

LaFleur.7In re: Marriage of LaFleur, 2021 CO 3, ¶ 4.

Obergefell Applies Retroactively

Citing prior U.S. Supreme Court precedent, the Colorado Supreme Court also concluded that when SCOTUS applies a rule of federal law to parties before it, the rule must be given full retroactive effect to all events, even those which precede the decision. LaFleur.8In re: Marriage of LaFleur, 2021 CO 3, ¶ 5. Therefore, the holding that the marriage restrictions are unconstitutional must also be given retroactive effect with respect to same-sex common law marriage.

Facts Relevant to Same-Sex Common Law Marriage Claim

In 2018, a gay man (Pyfer) filed for dissolution of marriage, alleging that he and his partner (LaFleur) had entered into a same-sex common law marriage back in 2003.

LaFleur denied there was a common law marriage, arguing (1) it was impossible legally, since Colorado did not recognize same-sex marriage in 2003, the parties never could have intended that they be married by this ceremony, and (2) factually, the couple did not intend to enter into a common law marriage under the then-controlling Lucero9People v. Lucero, 747 P.2d 660 (Colo. 1987). standard.

Evidence Supporting Common Law Marriage

After an evidentiary hearing, the trial court concluded that the parties intended to be married, so entered into a same-sex common law marriage back in 2003. Facts relevant to this determination, as set forth in LaFleur.10In re: Marriage of LaFleur, 2021 CO 3, ¶ 10.:

Factors support same-sex common law marriageFactors support same-sex common law marriage
  • Pyfer proposed marriage, and LeFleur accepted in front of family.
  • They had a ceremony before family and friends where they exchanged vows and rings.
  • The ceremony appeared to be a wedding, with photographer, a toast, vows, and a reverend officiating.
  • The couple signed a document entitled “Certificate of Holy Union.”
  • Following the ceremony, Pyfer held himself out as married to family and friends.
  • Pyfer listed LaFleur as his spouse on a company form in 2016, and a vehicle in 2017.
  • LaFleur knew of Pyfer holding themselves out as married to family, friends, and on the forms, and never confronted Pyfer about it.
  • LeFleur supported Pyfer financially.
  • The couple cohabitated, sharing the same room until their relationship started breaking down.

Evidence Against a Common Law Marriage

LaFleur’s evidence against a common law marriage discussed by the LaFleur11In re: Marriage of LaFleur, 2021 CO 3, ¶¶ 11-12. court included:

  • He claimed he never intended to be married.
  • Had LaFleur thought the ceremony was legally binding, he never would have gone through with it.
  • Neither of the parties really wore their “wedding” rings
  • The couple did not share bank accounts.
  • His family denied there was a marriage, and minimized the significance of the ceremony.
  • He never told his co-workers he was married (though this could be explained by testimony that he worked in an environment “not welcoming” of same-sex couples).

The trial court found that even if LaFleur may not have wanted all of the legal obligations of a marriage, when he accepted the marriage proposal and went through the ceremony, he intended to be joined with Pyfer “for the rest of his life.” Accordingly, they had a same-sex common law marriage dating back to 2003. The court then dissolved the parties’ marriage and divided marital assets.

Elimination of Race- & Gender-Based Restrictions Was Retroactive

The Court noted that Colorado had historically imposed restrictions on common law marriage which were later deemed to be unconstitutional, such as anti-miscegenation laws (bars on interracial marriage), only repealed in 1957 by the Colorado legislature, and in 1967 by the U.S. Supreme Court in the (aptly-named) Loving12Loving v Virginia, 388 U.S. 1 (1967). case.

And while Colorado had not had the opportunity to consider the retroactive effect of Loving, courts from other states which did consider the issue found it applied retroactively, and applied it to interracial marriages which predated Loving and would therefore have been illegal at the time they were entered into. LaFleur.13In re: Marriage of LaFleur, 2021 CO 3, ¶ 24.

Moreover, as the Court found, “Virtually every other jurisdiction to consider this question thus far has held that Obergefell applies retroactively to allow recognition of a common law same-sex marriage predating the decision.” LaFleur.14In re: Marriage of LaFleur, 2021 CO 3, ¶ 46.

Intent of Parties to Marry vs Legality of Marriage

A couple may intend to enter into a marriage, even though the law at that time may have prohibited such a marriage:

“to enter the legal and social institution of marriage, a couple must mutually agree “to enter a marital relationship-that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. That the marital relationship was not recognized at the time does not change the nature of the relationship itself.”

LaFleur.15In re: Marriage of LaFleur, 2021 CO 3, ¶ 38 (Cleaned Up).

The Court was dismissive of LaFleur’s contention that he did not anticipate his relationship would actually be a same-sex common law marriage, and therefore carry any legal consequences:

“Many couples may not appreciate or intend the legal consequences of entering into a marital relationship, or anticipate the ways in which those consequences may shift over time as the law evolves. But a couple need not intend the legal consequences of a marital relationship in order to intend to enter into the relationship itself. Instead, the focus is on whether the parties intended to enter into a relationship that is marital in nature. The myriad rights, benefits, and responsibilities bestowed on the marital relationship by the state reflect the government’s and society’s pledge to support and protect the union, but they are incidental to the marital relationship itself. Thus, the fact that a couple did not anticipate or intend the legal consequences of entering a marital relationship does not render their intent to enter into such a relationship legally impossible.”

LaFleur.16In re: Marriage of LaFleur, 2021 CO 3, ¶ 39 (Cleaned Up).

Application of new Hogsett Common Law Marriage Framework

Having held that a may enter into a same-sex common law marriage prior to legalization of same-sex marriages, the Court next addressed whether the facts of this particular situation constituted a marriage under the new Hogsett17In re: Marriage of Hogsett, 2021 CO 1. decision, issued the same day.

Discussing the facts set out above regarding the proposal, ceremony, and conduct of the parties after the ceremony, the Court affirmed the trial court decision that the couple had a common law marriage. Moreover, the absence of some factors traditionally considered important, such as joint tax returns, “reveals little, especially given that for the majority of their relationship, this was not a possibility under federal law.” LaFleur.18In re: Marriage of LaFleur, 2021 CO 3, ¶ 55.

In this case, what was more relevant was what the parties did do to show their committed marital relationship, such as cohabitation, providing financial support, and Pyfer listing LaFleur as spouse on several forms over the years.

Dissent – Cannot Intend to Enter Into Illegal Marriage

Justice Samour dissented, finding that applying Obergefell retroactively to find a same-sex common law marriage was created back in 2003 was both “utterly unfair” to LaFleur, and legally incorrect:

“Is it possible for a same-sex couple in Colorado to have mutually intended and agreed to enter into a legal marital relationship when both parties were aware that Colorado law prohibited same-sex marriage at the time? The answer is clearly no. When Pyfer and LaFleur participated in their wedding ceremony in November 2003, they both understood that same-sex couples could not lawfully marry in Colorado because Colorado considered same-sex marriage unlawful, unenforceable, and invalid. Thus, Pyfer and LaFleur could not possibly have intended or agreed to enter into the legal relationship of marriage. And, because common law marriage in Colorado requires mutual intent and agreement to enter into the legal relationship of marriage, Pyfer and LaFleur cannot be deemed to have entered into a common law marriage.”

LaFleur.19In re: Marriage of LaFleur, 2021 CO 3, ¶ 76 (Samour, J., dissenting) (Cleaned Up).

Samour reasoned that it was not just unfair, but “facile” to retroactively impose on a couple a legally-binding marriage that neither could have believed at the time they had:

Because the marriage Pyfer and LaFleur entered into in 2003 was not legally binding-something they both realized-there was no basis for either of them to believe that a dissolution proceeding could ever be initiated in the event the marriage failed. Nor did they have reason to think that a court could ever be called upon to distribute their assets and debts or to order either of them to pay maintenance. It follows that neither Pyfer nor LaFleur had cause to consider a prenuptial agreement or any other type of premarital arrangement to protect himself in case the marriage failed.

LaFleur, the party who owns almost all the assets in this relationship, confirms that he didn’t expect there could be legal consequences if his marriage with Pyfer failed. Not only was that a reasonable expectation, it was the only rational one. Indeed, how could there be legal consequences vis-à-vis a dissolution proceeding as a result of entering into a marriage that was not recognized as a marriage under Colorado law and was thus devoid of legal effect? Something that’s not legally binding cannot simultaneously be legally binding. In meteorological terms, it’s either raining or it isn’t.

Lafleur.20In re: Marriage of LaFleur, 2021 CO 3, ¶¶ 88-89 (Samour, J., dissenting) (Cleaned Up).

In short, people entering into a relationship must have notice from the outset that they would be in a legal marriage – something this couple clearly did not have.

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