Another State Abolishes Common Law Marriage

Bride and groom at an outdoor wedding with blue sky.

Colorado in Shrinking Minority of States with Common Law Marriage

We do not typically write about legal developments in other states – keeping on top of family law updates in Colorado keeps us plenty busy. But when your state is one of an already tiny pool of states which recognizes common law marriage, and one of that number leaves the gang, it’s newsworthy, even in Colorado.

Common law marriage had a good run. In ancient Greece, marriage was a private contract between individuals, with no need to seek the blessing of the state. Common law marriage existed in medieval Europe even before Henry VIII, Charles V and Francis II were battling for European domination in the early 16th century. And when 13 British colonies broke out on their own in 1776 and formed the United States, they adopted the English common law, including common law marriage, even though England itself had abolished it just before the War of Independence with the Marriage Act of 1753.

In the 19th century, common law marriage was prevalent for a variety of reasons – as the South Carolina Supreme Court discussed when abolishing it, these reasons include:

  • Logistics – it was difficult, particularly in frontier America, for couples to obtain a ceremonial marriage.
  • Morals – common-law marriage legitimized an otherwise scandalous relationship.
  • Financial – a family has the legal duty of support to one-another, so would not rely upon taxpayers.

But over the past 100 years, most states abolished common law marriage, leaving just a small minority of states which retain it.

South Carolina Abolishes Common Law Marriage

In Stone,1Stone v. Thompson, 833 S.E.2d 266 (S.C. 2019). the South Carolina Supreme Court decided that common law marriage had outlived its usefulness, and ended the practice. (Since common law marriage was created by the courts, no legislation was required to abolish it).

“Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it. Therefore, from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license.”

Stone.2Stone v. Thompson, 833 S.E.2d 266, 267 (S.C. 2019).

The court found significant the fact that cohabitation without being married was commonplace, and without stigma: “Critically, non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups”, and even pointed out that most of the witnesses at the trial, for or against the position that the parties were married, were themselves simply living together.

Interestingly, the court also recognized that common law marriage may result in an unintended marriage for some:

“The right to marry is a fundamental constitutional right, which leads us to believe the right to remain unmarried is equally weighty, particularly when combined with our admonitions that a person cannot enter into such a union accidentally or unwittingly. Further, we must agree with the many observers who have noted that common-law marriage requirements are a mystery to most.”

Stone.3Stone v. Thompson, 833 S.E.2d 266, 269 (S.C. 2019) (Cleaned up) (Unpublished decision).

Finally, as with other states which have abolished common law marriage, the abolition is only prospective, not retroactive. That means that parties can still assert that a common law marriage existed if it started before July 24, 2019, but for marriages entered into after that date, they must obtain a license and a ceremonial marriage.

Will Colorado Abolish Common Law Marriage?

No one has a crystal ball, but there is no groundswell of people in Colorado clamoring to end common law marriage. The last time the Colorado Assembly addressed common law marriage was in 2006, when it enacted  and imposed a minimum age of 18. Had the assembly wished to end it, they certainly had the opportunity then.

Practitioners are divided on common law marriage. While I’m not aware of any actual polling among family law attorneys, from a purely anecdotal perspective, while some attorneys are vocal in their insistence Colorado retain it, most of us believe Colorado should join the national trend and end it.

And at least one appellate judge agrees. In a decision last year, Hogsett.4In re: Marriage of Hogsett & Neale, 2018 COA 176. Judge Furman urged the assembly to abolish common law marriage, stating:

“I write separately to encourage our legislature to abolish common law marriage, in conformity with the majority of jurisdictions. As this case illustrates, common law marriage places a significant and unnecessary burden on the parties and our courts to untangle relationships to determine property (or probate) matters. I believe this is needlessly expensive and unfair to the parties. For all intents and purposes, Hogsett believed she and Neale were married, but Neale believed otherwise. And the two had to endure a lengthy hearing and appeal to determine they were not… Because Colorado’s citizens have physical and legal access to ceremonial marriage, and children born to unmarried parents are afforded the same rights and privileges as those born to married parents, common law marriage is no longer practically or legally necessary.

Hogsett.5In re: Marriage of Hogsett & Neale, 2018 COA 176 ¶¶ 35-36 (Emphasis added).

The Shrinking Common Law Marriage Club

With South Carolina’s abolition of common law marriage, per Wikipedia Colorado is one of only 7 states and the District of Columbia which recognize common law marriage for all purposes:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • Rhode Island
  • Texas
  • Utah
  • District of Columbia

But don’t worry if you have a common law marriage from Colorado and move somewhere else – under the Full Faith & Credit clause of the U.S. Constitution, states are required to recognize marriages validly entered into in other states, even if they themselves do not recognize a common law marriage.

More Information

For a complete discussion of all aspects of common law marriage in Colorado and citations to legal authority, see the article Colorado Common Law Marriage in the Colorado Family Law Guide.

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