NOTE – On January 11, 2021, the Colorado Supreme Court issued its long-awaited decision in Hogsett, and has replaced the Lucero standard for determining whether there is a common law marriage. See our new blog post for a full discussion of this important case.
Can a same-sex couple have a common law marriage which predates the legalization of same-sex marriages in Colorado in 2015? Yes. In a brand-new decision, the Colorado Court of Appeals has ruled:
“In states like Colorado that recognize common law marriage, retroactive application of Obergefell means that same-sex couples must be accorded the same right as opposite-sex couples to prove a common law marriage, even when the alleged conduct establishing the marriage pre-dates Obergefell.”Hogsett.1In re: Marriage of Hogsett & Neale, 2018 COA 176, ¶ 24.
Clearly a same-sex marriage entered into after the U.S. Supreme Court struck down same-sex marriage bans in 2015 is legal, whether common law or ceremonial. But until now, there was no clear guidance as to whether a same-sex couple in a stable relationship would be treated as married for conduct which predates Obergefell.2Obergefell v. Hodges, 576 U.S. 644 (2015).
For more information about common law marriage, see the Common Law Marriage in Colorado article in the Colorado Family Law Guide. And see our Same Sex Marriage Historical Developments article for more information about the decades-long path to martial equality for gay and lesbian couples.
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