Edi Hogsett and Marcia Neale were a same-sex couple who were together for thirteen years. When their relationship ended, they jointly sought a dissolution of a common law marriage. Later, Marcia argued that she and Edi were not actually married, in part because they could not have legally married prior to marriage equality.
The trial court found that the couple was not in a common law marriage, and a Colorado Court of Appeals agreed, but noted that same-sex couples should be able to enter into common law marriages even before marriage equality. The Colorado Supreme Court ruled that same-sex couples must be allowed to enter common law marriages, and that the test for finding a common law marriage must be updated to be inclusive. The Court explained that a common law marriage requires a mutual agreement to “share a life together as spouses” along with some conduct demonstrating this agreement. The Court noted that the test must be applied flexibly to the facts of each case, explaining that same-sex couples may not be fully open about their relationships due to fears of discrimination and thus may only discuss their relationship with a close community, that prior to marriage equality, same-sex couples could not file joint taxes or refer to themselves as married on government forms. The Court also explained that same-sex couples and some couples of color may not refer to themselves as “wife,” “husband,” or “spouse,” so use of these terms are not required to establish a common law marriage. And because low-income people may not have joint bank accounts or joint ownership of a home, these factors are not required.
NCLR, the Colorado LGBTQ Bar Association, the Colorado Women’s Bar Association, and Lambda Legal Defense & Education Fund, represented by Hogan Lovells, LLP, filed an amicus brief urging the Court to consider the realities of homophobia and violence faced by same-sex couples in determining whether they have openly lived as a married couple, which is one of the requirements of establishing a common law marriage in Colorado.
