The Supreme Court revisited the test for proving a common law marriage that the Court articulated over three decades ago in People v. Lucero, 747 P.2d 660 (Colo. 1987). Because many of the indicia of marriage identified in Lucero have become less reliable, particularly in light of the recognition of same-sex marriage and other social and legal changes, the Court refined the test and held 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 core 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 this case, the Court applied the refined Lucero test and concluded that no common law marriage existed. The Court therefore affirmed the Court of Appeals’ judgment.

In this case, the Supreme Court applied the updated common law marriage test announced today in In re Marriage of Hogsett and Neale, 2021 CO 1, __ P.3d __, emphasizing that a common law marriage finding depends on the totality of the circumstances, and no single factor is dispositive. The Court determined that it is unclear from the record whether the parties mutually agreed to enter into a marital relationship. Moreover, the Court noted that while the magistrate’s treatment of certain evidence may have been appropriate under People v. Lucero, 747 P.2d 660 (Colo. 1987), it does not account for the legal and social changes to marriage acknowledged in Hogsett. The Court therefore vacated the Court of Appeals’ judgment and remanded with instructions to return the case to the probate court to reconsider whether the parties entered into a common law marriage under the refined test announced in Hogsett.

The Supreme Court reviewed whether a common law same-sex marriage entered in Colorado may be recognized as predating Colorado’s recognition of formal same-sex marriages. The Court held that state law restrictions on same-sex marriage deemed unconstitutional in Obergefell v. Hodges, 576 U.S. 664 (2015), cannot serve as an impediment to the recognition of a same-sex marriage predating that decision. The Court therefore affirmed the district court’s conclusion that the parties here were not, as a matter of law, barred from entering into a common law marriage. The Court also affirmed the district court’s determination that the parties in fact entered into a common law marriage in 2003. The Court reversed the district court’s division of property and award of spousal maintenance, however, and remanded with instructions to make further findings in accordance with CRS §§ 14-10-113 and -114.

This case required the Supreme Court to determine whether, after a district court enters an order dismissing an action pursuant to CRCP 12(b)(1), CRCP 15(a) gives the plaintiff the right to amend its complaint as a matter of course and without leave of the court or the consent of the defendant, or whether such a dismissal results in a final judgment that cuts off the plaintiff’s right to amend as a matter of course.

Reading CRCP 15(a) harmoniously with CRCP 59 and CRCP 60, the Court concluded that a final judgment cuts off a plaintiff’s right to file an amended complaint as a matter of course under CRCP 15(a). Accordingly, because the dismissal order at issue constituted a final judgment, plaintiff here did not have the right to amend its complaint as a matter of course but rather was obligated, if it wished to amend, to seek relief from the judgment and to file a motion requesting leave to amend or indicating that defendants had consented in writing to the filing of an amended complaint.

Nonetheless, in the circumstances presented, the Court deemed it appropriate to consider the viability of the amended complaint and concluded, contrary to the district court, that that amended pleading is not futile but rather states viable claims for relief.

Accordingly, the Court affirmed the judgment of the division below, albeit on different grounds, and remanded the case with directions that the case be returned to the district court with instructions that the court accept plaintiff’s amended complaint for filing, after which defendants may respond in the ordinary course.