Marriage ruling a 'real shocker'

Charlie Brennan, Rocky Mountain News

Friday, June 16, 2006

A common-law marriage in Colorado between a 14-year-old boy and 12-year-old girl is possible in the wake of an appellate court ruling Thursday.

That's the potential fallout from a Colorado Court of Appeals decision that overturned a lower court finding that 15 is too young for a girl to enter into common-law union.

"This is a real shocker," said Stephen Harhai, a Denver attorney and past chairman of the family law section of the Colorado Bar Association. "Under this action, this means your 12-year-old can, with whomever, say, 'I intend to be married to you,' and that's it, (they're) married. That's a little shocking."

The decision by a three-judge panel reversed a Weld County case in which a judge ruled that a 15- year-old girl was too young to consent to a common-law marriage.

It does not affect state law regarding "statutory" or conventional marriage in Colorado, which sets the minimum marriage age at 16 and requires either parental or judicial approval for 16-year-olds and 17-year-olds.

The Weld County case that sparked 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.

Weld County Attorney Bruce T. Barker declined to discuss the original case in detail because J.M.H. is still the subject of an ongoing dependency and neglect action brought by the Weld County Department of Human Services.

Thursday's appellate court ruling stopped short of firmly establishing a minimum age for common-law unions. It noted, however, that Colorado recognizes English common law, which legalizes such marriages at age 12 for girls and 14 for boys.

"Previously, Colorado law did not set an (minimum) age" for common- law unions, Harhai said. "That's why this is a new precedent."

Harhai said that, while surprising, the appellate decision was not logically or legally flawed and was in line with other established Colorado law.

Therefore, said Harhai, it would likely require action by the state legislature if Coloradans are uncomfortable with the result of Thursday's ruling.

In fact, the ruling seemed to offer an "invitation" to legislative correction, Harhai said, by including the phrase "in absence of a statutory provision to the contrary."

In Rouse's appeal, he stated that he and J.M.H. began living together in April 2002 and applied for an Adams County marriage license a year later.

The girl achieved legal independence by April 2003, but her mother consented to the marriage, according to the ruling, and went with her daughter and Rouse to the county clerk's office to get a license.

A license was issued, but Weld County District Judge James Hartmann granted a motion by the Weld County Department of Human Services to invalidate the marriage. He ruled that those under age 16 must have judicial approval for either common-law or ceremonial marriage.

The appellate court, however, agreed with Rouse that he could legally marry J.M.H. It didn't conclude whether she and Rouse have a legal marriage, returning the case to the trial judge to settle that question.

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.

Colorado is one of 10 states, plus the District of Columbia, that acknowledge common-law marriage. Pennsylvania recently elected not to recognize common-law marriages after Jan. 1, 2005.

"It appears that Colorado has adopted the common-law age of consent for marriage as 14 for a male and 12 for a female, which existed under English common law," the ruling stated. "Nevertheless, we need only hold here that a 15-year-old female may enter into a valid common-law marriage."

English common law is the traditional unwritten law of England, based on custom and use, which began developing hundreds of years before the founding of the United States.

brennanc@RockyMountainNews.com or 303-892-2742 Staff writer Tillie Fong contributed to this report.