Colorado Allows 12-Year-Old Girls To Enter Into Common-Law Marriages
Trial court erred in holding that a 15-year-old girl's marriage to an adult man was void ad initio because they did not obtain judicial consent, the Colorado Court of Appeals held June 15. Pointing out that Colorado recognizes common-law marriage, the court noted that there is no statutory provision indicating that the state does not follow the common-law age of consent for marriage, which is age 12 for girls. Thus, it said that so long as all other elements of a common-law marriage are present, the couple's marriage is valid. In re J.M.H., Colo. Ct. App., No. 04CA0740, 6/15/06.
For information regarding Common Law Marriages in Arizona, contact NRG Family Law, Arizona's Premier Family Law Firm.
The man (who is now 38) and the girl began living together in 2002. They applied for a marriage license in 2003, when she was 15. The girl's mother offered her signed and notarized consent to the marriage, and accompanied them to the county clerk's office to obtain a marriage license. The clerk approved the application and returned it by mail, stating that they were fully registered as a legal married couple.
In 2004, the county department of human services petitioned to declare the marriage invalid. The trial court granted the petition, holding that a person under the age of 16 must obtain judicial approval for a valid common-law or ceremonial marriage. It ruled that the marriage was void ab initio under the state's Uniform Dissolution of Marriage Act, which requires a court to find that an underage party is capable of assuming the responsibilities of marriage and that entering into a marriage would serve that party's best interests.
UMA
Reversing, Judge Daniel M. Taubman looked to the state's Uniform Marriage Act, which sets forth the rules and requirements for ceremonial marriages in Colorado. He noted that the UMA provides that the statutory age of consent for marriage is 18 and that persons between the ages of 16 and 18 may marry if they obtain parental consent, or if that is not possible, judicial approval.
Taubman pointed out, however, that the UMA also provides that "[n]othing in this section shall be deemed to repeal or render invalid any otherwise valid common-law marriage between one man and one woman." Colo. Rev. Stat. § 14-2-104(3) (2005). Explaining that Colorado is one of several states that still recognizes common-law marriage, he said that such marriages are governed by common law, not the UMA.
Common Law Prevails
Finding that Colorado appellate courts had not previously determined the age of consent for a valid common-law marriage, Taubman looked to the origins of common law in Colorado and to other jurisdictions for guidance. He observed that Colorado statutory law provides that the "common law of England ... shall be considered as of full force until repealed by legislative authority." § 2-4-211. Thus, absent clear legislative intent, the common law prevails in any conflict with statutory law, Taubman said.
Also noting that the U.S. Supreme Court, in Meister v. Moore, 96 U.S. 76 (1877), held that common-law marriages are valid--notwithstanding statutes that require ceremonial marriages to be solemnized by a minister or a magistrate--if no specific provision to the contrary exists, Taubman found that other jurisdictions have followed this approach. He added that statutes prescribing the procurement of a license and other formalities to be observed in the solemnization of a marriage do not render invalid a marriage entered into according to the common law--but not in conformity with the statutory formalities--unless the statutes themselves expressly declare such a marriage invalid.
Age of Consent
Taubman determined that courts in other jurisdictions have uniformly declared that the common-law age of consent applies to common-law marriages, even when statutes otherwise require parental or judicial approval for persons under a specified age, unless such statutes expressly modify or abrogate the common law. Taking note of the ruling in State v. Wade, 766 P.2d 811 (Kan. 1989), that the common-law marriage of a person is valid, regardless of whether the person has reached the age of competency as established by statute, if the person is competent, he observed that under English common law, children above the age of seven could marry, but that such marriage was voidable until the parties reached an age at which they became able to consummate it, which the law presumed to be 14 for males and 12 for females.
Going on to note that several jurisdictions have adopted those ages as the common-law ages of consent for marriage, Taubman ruled that the court below erroneously held that persons under the age of 16 may not enter into a valid common-law marriage without judicial approval. He pointed out that neither the UDMA nor the UMA makes any reference, either express or implied, to (1) common-law marriages in general; (2) abrogation or modification of the common law regarding the age of consent for common-law marriage; or (3) the need for any formalities, such as parental consent, to solemnize a common-law marriage between an adult and a minor. Taubman further noted that the Uniform Marriage and Divorce Act, upon which the UDMA is substantially based, also does not address such issues.
Valid Ab Initio
"Thus, in the absence of a statutory provision to the contrary, it appears that Colorado has adopted the common-law age of consent for marriage as fourteen for a male and twelve for a female, which existed under English common law. Nevertheless, we need only hold here that a fifteen-year-old girl may enter into a valid common-law marriage," Taubman decided.
Taubman went on to say that if all other elements for a common marriage were satisfied in this case, the girl's marriage to the man was valid ab initio because she was competent at common law on the date she was married. Holding therefore that the trial court erred when it required the man to obtain judicial approval for his common-law marriage to the girl, he remanded for an evidentiary hearing addressing whether the elements necessary for establishing a common-law marriage, other than the age of consent, were met.
