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 same sex couples have a common law marriage which predates the legalization of gay marriage 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, ¶ 24.
Same Sex Couples in Ceremonial vs Common Law Marriage
Clearly same sex couples who enter into marriage after the U.S. Supreme Court struck down gay/lesbian marriage bans in 2015 are permitted, whether the marriages are 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.
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.
FAQ – Same Sex Couples & Common Law Marriage
Does common law marriage apply to gay couples?
Yes. Under Colorado law, a same-sex couple can not only enter into common law marriage, but could even form common law marriages before same-sex marriage was legalized with Obergefell in 2015.
Is gay marriage legal in Colorado?
Yes. In Colorado, same sex couples can enter into marriage exactly like a heterosexual couple, including common law marriage or ceremonial marriage.
Does Colorado recognize common law marriage?
Yes. In Colorado, both heterosexual and same sex couples can be married by common law marriage, or a ceremonial marriage.
Award-Winning El Paso County Same Sex Marriage Law Firm
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For more information about our top-rated El Paso County family law firm, contact us by filling out our contact form, calling us at (719) 630-1123 to set up a free consult, or click on:
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