Save Common Law Marriage

A freak common law marriage case from the Colorado Court of Appeals will almost certainly result in legislative action is the Colorado Supreme Court can't manage to correct it first. One temptation in that debate will be to abolish common law marriage all together. This would be a mistake.

Twelve Year Old Girls Married Without Parental Consent?

The case of In re Marriage of JMH and Rouse decided yesterday stunned Colorado. In it, the unanimous three judge panel held that common law marriages in Colorado are not subject to the age restrictions applicable to marriage license marriages in Colorado, only to the limitations of common law. It applied this conclusion to hold that a marriage between a fifteen year old girl and an older man was valid, even though it would have required a judge's permission, in addition to parental permission from both parents, for them to get a valid marriage license. It held that the age of consent for a common law marriage was fourteen for a boy and twelve for a girl.

It would be possible to read the statute this way as the judicial consent provision is worded to specificaly refer to the issuance of marriage licenses (in an effort to preserve the validity of a valid out of state common law marriage). But, this is still a bad decision.

There are lots of ways that the court court have reached a better result.

For example, it would have held that the legislature intended the age limitations for marriage licenses in Colorado to govern common law marriages as well. If they did not, they would be an absurdity, because if a man and woman can have a common law marriage without judicial or parental approval, why would anyone ever seek it? An interpretation that would render a statutory law an absurdity is disfavored.

Alternatively, common law is made by judges and need not slavishly follow the common law of England from centuries ago. It can recognize evolving realities.

When the English common law evolved, there were no marriage licenses, now, there is no state in the United States where a person may obtain a marriage license under the age of eighteen without parental consent, and that evolving reality could inform the standard that judges should set as a judge made common law standard in Colorado.

Colorado's statutory rape laws could also impact the decision. Section 18-3-409, Colorado Revised Statutes, provides that licensed, common law, or "putative" marriage is a defense to a rape offense only as stated in a specific offense.

Marriage is a defense to statutory rape, which in Colorado comes in two types. Felony statutory rape is committed when someone knowingly has sex with someone not their spouse who is fourteen or younger (if they are more than four years apart in age). Section 18-3-402, Colorado Revised Statutes and Section 18-3-405, Colorado Revised Statutes. Misdemeanor statutory rape is committed when one knowingly has sex with someone not their spouse who is sixteen years of age of younger (if they are more than ten years apart in age). Section 18-3-402, Colorado Revised Statutes. Marriage is also a defense to sexual assault by a person in position of trust. Section 18-3-405.3, Colorado Revised Statutes.

If sex with someone under fifteen is highly regulated, and sex with someone under seventeen is often a crime, and judicial consent is normally required for marriage under the age of sixteen, and parental consent is normally required for marriage under the age of eighteen, it is fair to infer that the social norms that established twelve as the age of consent for girls seeking to marry no longer apply.

Odd Facts Make Bad Law?

The facts of the JMH case are certainly freakish. Who are these people?

Thursday's decision involves a girl known in legal documents as J.M.H., who started living with Willis Lee Rouse in April 2002 when she was 14 and Rouse was 34.

Rouse is now a 38-year-old inmate at the Fremont Correctional Facility, serving four years for stalking and escape. J.M.H. recently turned 18. . . .

Rouse is in prison in connection with a December 2002 arrest for sexual assault on a child. Westminster police arrested him for allegedly having sex with a girl who was living with him at the time, a police report said.

The girl became pregnant, but told investigators she did not have sex with Rouse and that the father of the child was someone else. Police removed her from Rouse's home and returned her to her mother, and the case was reported to Adams County Social Services, the report said.

According to court records, Rouse pleaded guilty to a stalking charge in the case, and all sexual assault charges were dropped. He was sentenced to four years.

This isn't a statutory rape case. It isn't even a dependency and neglect or juvenile delinquency case, although a parallel dependency and neglect case is pending. It is an annulment case, which is being brought despite the fact that both parties to the marriage are over the age of eighteen, are not described in the facts as being mentally incompetent, and neither party to the marriage seeks to end the marriage.

It was also not particularly well argued at trial or on appeal, in all probability, because the husband did not have an attorney and was incarcerated at the time.

By the time the case went to trial, the wife was over the age of eighteen and appears to have ratified her marriage. But, the Depatment of Social Services claims that the matter is not moot because a dependency and neglect proceeding is still pending. This conclusion is dubious, and largely unexamined in the decision, as well. If a marriage exists now, and the girl, now eighteen years old, is emancipated now, what purpose does a dependency and neglect proceeding, whose main purpose of the terminate parental rights, matter now? A finding that the case was moot would be a reasonable one which would void this precedent.

Also, in this odd case, the Adams County Clerk actually issued a marriage license to the couple in the case, with the mother's signed and notarized approval, despite the fact that the wife disclosed that she was fifteen years old at the time and did not present evidence of judicial approval.

The marriage license alone, even if invalidly issued, would establish a "putative marriage" under Colorado law (i.e. a relationship in which at least one party as a reasonable bona fide belief that he or she is married, even if he is not), which would appear to be a defense to any criminal prosecution for statutory rape in any parallel case, given the way the statute is worded, because the criminal statute simply uses the word "spouse", which could be more clear, but the language of the marriage defense statute specifically mentions marriages by license, common law or putative spouse.

Thus, it isn't at all clear that the validity of the marriage at age fifteen matters, since the couple is married now and the girl is an adult.

Common Law Marriage is Generally Good

It would be an easy enough matter, if the Colorado Supreme Court does not take up the case, to resolve the problem legislatively. For example, the legislature could simply enact a statute which states:

"No common law marriage may be entered into in this state, after the effective date of this act, if one of the parties is less than eighteen years of age old. In all other respects, the law of common law marriage in Colorado shall remain unchanged."

Thus, minors would need a marriage license to wed in Colorado, protecting the parental consent and judicial consent provisions there, and the full faith and credit requirement that marriages valid where entered into outside the state be honored, would remain in place.

But, the temptation to end common law marriage all together should be resisted. The usual common law marriage involves people who live together has husband and wife, often for an extended period, often have children, and live in all respects as married people, without any element of child abuse towards a young wife, and without any difference from any other marriage but a piece of paperwork.

To end common law marriage in Colorado would have a huge impact upon divorce. Homemaker common law wives who are divorcing would bear the brunt of the punishment, by being denied an equitable division of property held in the husband's name and being denied alimony. It would also cost these couples health insurance benefits, tax benefits, and inheritance rights (more often than not, these couples won't have a will either, they just aren't good at paperwork). Making such important substative right turn on the bureaucratic aptitute of a couple in their late teens or twenties is bad public policy. Common law marriage, as applied, produces just and equitable results.

But, there is no reason that common law marriage should be used to shield child abusers from criminal liability, at least, outside the remarkably odd case where a county clerk misleads an individual by issuing a marriage license where that was improper.