Common Law Marriage And Partition Actions For Unmarried Couples

Unmarried couples purchasing property together is becoming more frequent. This creates a list of potential legal problems.

What happens when the couple splits up? What happens to the equity? Does one person get to keep the house? What about the lenders?

This Article discusses various aspects of marriage, common law marriage, same-sex marriage rights, and partition actions.

DO NOT RELY ON ANY PORTION OF THIS ARTICLE AS VALID LAW. ALTHOUGH IT MAY DISCUSS REAL LAWS, THEY MAY NOT BE CURRENT AS OF THE DATE YOU READ THIS ARTICLE OR APPLICABLE TO YOUR SITUATION. THIS IS NOT LEGAL ADVICE. FOR ALL LEGAL QUESTIONS, PLEASE CONTACT AN ATTORNEY. I AM AVAILABLE TO ANSWER ANY QUESTIONS ABOUT THIS ARTICLE. I ALSO OFFER FREE CONSULTATIONS.

LASTLY, THIS ARTICLE CONTAINS CERTAIN OPINIONS. SUCH OPINIONS MAY NOT BE CONSISTENT WITH CURRENT CASE LAW.

Marriage Laws

Colorado has various laws that pertained to married couples. Among these is Colorado’s Uniform Dissolution of Marriage Act. This act dictates the procedure for dissolving a marriage. These laws are aimed at promoting amicable settlement, mitigating potential harm to both spouses and the children caused by the legal process, and promoting efficiency. See C.R.S. 14-10-102 (2023). In short, they are comprehensive and time-tested meaning they have their own miniature set of case management laws, there is plenty of case law, and they are fairly consistent. There are ton of advantages to using these laws including the mandatory discovery obligations, temporary injunctions, and so on.

In other words, married couples get special access to a set of laws that can help them divide their property and resolve property-related issues.

Colorado recognizes many forms of marriage including traditional, common law in certain situations, and same-sex marriage (via case law and work around statutes). See Colorado’s Uniform Marriage Act.

Common Law Marriage

In Colorado, as of the date of this article, Common law marriage is recognized and partially governed by C.R.S. 14-2-109.5 (2023) which reads as follows.

(1) A common law marriage entered into on or after September 1, 2006, shall not be recognized as a valid marriage in this state unless, at the time the common law marriage is entered into:

(a) Each party is eighteen years of age or older; and

(b) The marriage is not prohibited, as provided in section 14-2-110.

(2) Notwithstanding the provisions of section 14-2-112, a common law marriage contracted within or outside this state on or after September 1, 2006, that does not satisfy the requirements specified in subsection (1) of this section shall not be recognized as valid in this state.

So in short, Colorado recognizes common-law marriage but does not list all the requirements in a statute. Rather, certain elements are governed by the statute above and by current case law. Case law is always changing so it is important to discuss your case with an attorney.

For example, the test from the landmark Lucero case was just recently altered. Here is a nice quote from a 2021 case:

Today we refine the test from Lucero and hold that a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The key inquiry is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. In assessing whether a common law marriage has been established, courts should accord weight to evidence reflecting a couple's express agreement to marry. In the absence of such evidence, the parties' agreement may be inferred from their conduct. When examining the parties' conduct, the factors identified in Lucero can still be relevant to the inquiry but must be assessed in context; the inferences to be drawn from the parties' conduct may vary depending on the circumstances. Finally, the manifestation of the parties' agreement to marry need not take a particular form. Hogsett v. Neale, 478 P.3d 713, 727 (Colo. 2021)

So in short, get a lawyer when discussing common-law marriage. Common law marriage is a factor-based test. If enough factors are met and the court holds that you are in fact married, then you qualify to use Colorado’s Uniform Dissolution of Marriage Act.

Same-Sex Marriage

Colorado, like the rest of the country, recognizes same-sex marriage…  

THIS PORTION IS 100% OPINION.

But, the sad reality is that Colorado despite its liberal nature has a lot of remnants of discrimination against same-sex couples. It is not uncommon to see same-sex couples purchase property together but remain unmarried. Hence, same-sex couples lack many of the protections provided by traditional marriage laws because they choose not to get married.  

The following statute can still be found on the books in Colorado. Portions of it have been overturned via case law and other statutes have been enacted to work with the governing case law. But the text remains.  

C.R.S. 14-2-104 (2023)

(1) Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if:

(a) It is licensed, solemnized, and registered as provided in this part 1; and

(b) It is only between one man and one woman.

(2) Notwithstanding the provisions of section 14-2-112, any marriage contracted within or outside this state that does not satisfy paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state….

So why, is this statute still on the books? The answer may lay in other legislative work. I direct your attention to C.R.S 14-15-102 (2023) which is part of Colorado’s Colorado Civil Union Act which reads as follows.

The general assembly declares that the public policy of this state, as set forth in section 31 of article II of the state constitution, recognizes only the union of one man and one woman as a marriage. The general assembly declares that the purpose of this article is to provide eligible couples the opportunity to obtain the benefits, protections, and responsibilities afforded by Colorado law to spouses consistent with the principles of equality under law and religious freedom embodied in both the United States constitution and the constitution of this state. The general assembly declares that a second purpose of the act is to protect individuals who are or may become partners in a civil union against discrimination in employment, housing, and in places of public accommodation. The general assembly further finds that the general assembly, in the exercise of its plenary power, has the authority to define other arrangements, such as a civil union between two unmarried persons regardless of their gender, and to set forth in statute any state-level benefits, rights, and protections to which a couple is entitled by virtue of entering into a civil union. The general assembly finds that the “Colorado Civil Union Act” does not alter the public policy of this state, which recognizes only the union of one man and one woman as a marriage. The general assembly also declares that a third purpose in enacting the “Colorado Civil Union Act” is to state that Colorado courts may offer same-sex couples the equal protection of the law and to give full faith and credit to recognize relationships legally created in other jurisdictions that are similar to civil unions created by this article and that are not otherwise recognized pursuant to Colorado law.

Hence, a simple statutory correction may not be enough. The problem runs deep.

I want to make it very clear, that I am neither for or against same-sex marriage. I am for the belief that people should be able to do what they want without unreasonable government interference. IE, if it is not hurting someone else, do what makes you happy. In the end, the government should have no say in who can or cannot get married. If you grant the right to one person, then how can you not grant it to another? It rings of inequality and that one belief is better than another.

THIS ENDS THE 100% OPINION SECTION.

Partition Actions For Unmarried Couples

To summarize my points, Colorado recognizes many forms of marriage but certain laws only apply to married couples.

In the situation above where a couple, that is unmarried, purchased property together, Colorado has a solution. In Colorado, if you jointly own real property or personal property, you have the right to bring a partition action. C.R.S. 38-12-101 (2023). This can include houses, cars, land, or other. As such, partition actions can be used in a similar manner to divorce proceedings.

The court at any time may make such orders as it may deem necessary to promote the ends of justice to completely adjudicate every question and controversy concerning the title, rights, and interest of all persons whether in being or not, known or unknown, and may direct the payment and discharge of liens and have the property sold free from any lien or may apportion any lien among the persons to whom the partition is made. C.R.S. 38-12-110 (2023).

Although these statutes do not provide the same degree of protection as the Colorado’s Uniform Dissolution of Marriage Act, they can be used to divide, sell, or otherwise equitably handle disputes with property. This coupled with other actions such as unjust enrichment claims, breach of contract claims, or other can help to fill the gap where traditional marriage laws are inapplicable.

What If We Were Not Partners?

That is okay too because partitions actions apply to a broad range of scenarios including owning property with family members, business partners, or other.

I encourage you to look around my site. I have a lot of other articles on partition actions, breach of contract and other. If you have a question about partitions, I encourage you to schedule a free 30-minute consultation.

Don’t give up your right to all the equity in your home because someone tells you that you are not married. If you contributed or your name is on the title, it’s probably not as clear cut. You need an attorney.  So reach out. Until then, have a great day.

DO NOT RELY ON ANY PORTION OF THIS ARTICLE AS VALID LAW. ALTHOUGH IT MAY DISCUSS REAL LAWS, THEY MAY NOT BE CURRENT AS OF THE DATE YOU READ THIS ARTICLE OR APPLICABLE TO YOUR SITUATION. THIS IS NOT LEGAL ADVICE. FOR ALL LEGAL QUESTIONS, PLEASE CONTACT AN ATTORNEY. I AM AVAILABLE TO ANSWER ANY QUESTIONS ABOUT THIS ARTICLE. I ALSO OFFER FREE CONSULTATIONS.

LASTLY, THIS ARTICLE CONTAINS CERTAIN OPINIONS. SUCH OPINIONS MAY NOT BE CONSISTENT WITH CURRENT CASE LAW.