Kids: Marry Now Or Hold Your Peace Until Age 18

Governor Owens signed Senate Bill 6 from the special session yesterday, which requires parties to common law marriages in Colorado to be at least eighteen years old and not prohibited from marriage due to incest or a prior marriage, starting September 1, 2006.  It was sponsored by Lakewood Democrat Betty Boyd and Golden Democrat Gwyn Green.
A common law marriage is formed in Colorado when a husband and wife agree between themselves that they are married and hold themselves out to the public as married.  No specific period of cohabitation creates a common law marriage or is required for a common law marriage, although police and lay people sometimes incorrectly say that people who are merely cohabiting are common law spouses.

Common law marriage allows couples whose marriage lacks only a marriage license from a town clerk, because they didn’t know that they needed one, make a technical mistake in obtaining one, or chose not to seek government approval for the marriage, to receive the rights of a married couple when they are together, alimony and property division rights if they break up, and inheritance rights at death.  This primarily protects homemakers in relationships that lack the proper formalities, who would otherwise be entitled to child support, but not alimony or an equitable share of marital property upon a breakup, and would have no inheritance rights.

There is no such thing as a common law divorce.

Senate Bill 6 was passed in reaction of the Colorado Court of Appeals case which held that a fifteen year old girl could enter into a common law marriage in Colorado, despite the fact that the age limit for obtaining a marriage license, even with parental consent in Colorado, was sixteen.  Her husband pleaded guilty to stalking and is currently in prison.  The man and the now adult woman still consider themselves to be married.  The case implied that boys as young as fourteen, and girls as young as twelve might be able to marry in Colorado.

In addition to prohibiting common law marriages from being entered into by parties under the age of eighteen in Colorado, Senate Bill 6, also states that common law marriages entered into outside the state by parties under the age of eighteen will not be recognized in Colorado, although legal authorities are divided over whether this provision is constitutional.

This provision addresses cases like that of Matthew Koso who had sex with a 13 year old girl in Nebraska and then tried to escape Nebraska’s age limitations on marriage by marrying her in neighboring Kansas when she was 14.

In response to the Koso case,Kansas changed its minimum marriage age to 15 years of age with judicial approval this spring.  Georgia set its minimum marriage age at sixteen with judicial approval this spring in response to a case where a 37 year old woman married a 15 year old boy.

The Chicago Tribune states that:

[There were] 60 girls in [Texas] who married in 2002 at the tender age of 14–the minimum age in Texas with parental consent. (A handful of other states sanction extremely early marriages with parental consent: In Alabama, South Carolina and Utah, girls can marry at 14; in New Hampshire it’s 13; in Massachusetts and Kansas, 12.

Colorado allows people as young as sixteen to obtain a marriage license with parental permission and allows marriages licenses to be issued at younger ages with both parental permission and judicial approval.

Ironically, the Colorado case which spurred this legislation was more a result of local government incompetence than a flaw in Colorado law.  A county clerk issued a marriage license in that case with one parents approval, but no judicial say so, despite the fact that the girl was too young to marry without judicial approval, the parent’s parental rights were terminated, and the husband had not obtained a divorce from his current wife.  The fact that he was not divorced would also have sufficed to invalidate a common law marriage claim, but the social services attorneys bringing an action to annul the marriage failed to raise that issue at the trial court level.

Before the Colorado Court of Appeals issued its ruling in the case, most Colorado attorneys (and the trial judge in that case) had assumed that common law marriages were not permitted in Colorado for people too young to obtain a marriage license, so there were no publicly known cases where a fifteen year old’s common law marriage had been recognized.

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Andrew Oh-Willeke

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