It Might Be ‘Common Law’
A 15-year-old girl can enter into a common-law marriage in Colorado, and younger girls and boys possibly can, too, a state appeals court ruled Thursday.
While the three-judge panel stopped short of setting a specific minimum age for such marriages, it said they could be legal for girls at 12 and boys at 14 under English common law, which Colorado recognizes.
…but could they not still charge the elder partner with statutory rape?
Life | tree hugging sister | 
June 16, 2006 7:49 am
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Well, 38 shacking up with 16 is, to put it mildly, creepy as hell. And according to the Colorodo AG’s own website, the very first of five requirements for common-law recognition is: “that the couple (1) is free to contract a valid ceremonial marriage, …”
In other words, you cannot circumvent the age requirement by simply going ahead and doing the other four things – it isn’t meant as a loophole to the standards, and this guy ought to go to jail.
Wow, I was under the impression that all states had gotten rid of common law marriage.
I love these kind of cases, from a legal prespective – especially since so much of the common law has been codified and then changed by legislatures over the years – but you just don’t see a lot of them any more.
All this just so Ward Churchill can take a bride? 😉
Since my trackback isn’t showing up, Manual Trackback (technology blatantly stolen from Ken), with a link to the decision.
“…but could they not still charge the elder partner with statutory rape?”
Maybe yes, maybe no. It would depend on the law with respect to statutory rape–there’s often an exception for married couples–and unfortunately, the Colorado Revised Statutes website keeps crashing so I can’t actually check at the moment. Likewise, I can’t address whether the AG opinion Nightfly linked to is correct or not without being able to look at the actual statutory language.
“Wow, I was under the impression that all states had gotten rid of common law marriage.”
Keeping it has certainly been a minority position, but not really all that unusual.
“I love these kind of cases, from a legal prespective – especially since so much of the common law has been codified and then changed by legislatures over the years…”
Well, yes and no. The degree to which that’s true varies pretty widely from state to state, and from one area of law to another. At one extreme, criminal law is ALL statutory: no state still has common-law crimes; at the other, my understanding is that most of the law of real property is still common law, which is why it’s the area that can really differ the most between states.
Every state, of course, has a reception statute saying something to the effect of (and this is from Florida’s, by memory): “the common and statute law of England, of a general and not local nature, down to the 4th day of July, 1776, is declared to be in effect in this state to the extent not inconsistent with the Constitution of the United States, the constitution of this state, and the acts of the legislature.” Every state except civil-law Louisiana, of course.
Dave J’s 6/16/06 comment is not quite correct, a majority of the states, but by no means all of them, have repealed common law crimes by statute or by judicial interpretation.
Moreover, on occasion a state which has repealed a common law crime by statute, will subsequently repeal that statute, which can have the effect of resurrecting a previously dormant common law crime.