- The Washington Times - Sunday, June 18, 2006

DENVER — Twelve-year-old girls are free to enter into a common-law marriage with 14-year-old boys or, for that matter, actor Johnny Depp, according to a Colorado court decision.

The Colorado Court of Appeals shocked parents and lawmakers alike Thursday when it ruled that common law trumps state statute when it comes to age-of-consent rules for marriage.

“It did surprise me because this issue hadn’t arisen before in this context,” said Stephen Harhai, a Denver lawyer and past chairman of the Colorado Bar Association’s family law section.

“We have very clear rules in statutory marriage but not in common-law marriage. The logic does follow, but it takes you to a surprising place,” Mr. Harhai said.

State statute sets the age limit at 16 with parental consent and 18 without it, but Colorado law also contains a provision for common-law marriages. The court cited English common law, the basis of U.S. common law, under which marriages are permitted at age 12 for girls and 14 for boys.

Colorado Attorney General John Suthers said yesterday he would urge the legislature to add an age-of-consent rule to the state’s common-law statute as soon as possible.

The decision reversed a lower-court ruling in which a judge decided that a Weld County girl was too young to consent to a common-law marriage with a man more than twice her age.

The girl, known in legal documents as J.M.H., moved in with Willis Lee Rouse in April 2002 when she was 14 and he was 34. The girl is now 18 and Rouse, who is serving a four-year jail sentence for stalking stemming from a sexual-assault arrest, is 38.

The couple was granted a marriage license after the girl’s mother gave her consent to the union in 2003, but the Weld County Department of Human Services challenged the marriage, citing the girl’s age.

Weld County District Court Judge James Hartmann invalidated the statutory marriage, but Rouse appealed the decision, arguing that he and the girl were still married under common law.

A three-judge panel of the appeals court unanimously agreed, pointing out that the state’s common-law statute places no restriction on the ages of the parties.

Ten states and the District of Columbia recognize common-law marriages.

Colorado law lists only three hurdles to establishing a common-law marriage: The couple must be in cohabitation, they must have the intention of being married, and they must hold themselves out as married to the community.

“It’s an easy fix for the legislature; all you have to do is go back and add an age limit,” Mr. Suthers said. “I would expect the legislature would make short work of that in the next session.”

While Mr. Suthers said he fully expected Colorado lawmakers to close the loophole, he noted that the legislature adjourned last month and that the next session isn’t scheduled to start until January.

That leaves about six months open for potential legal mischief.

“Between now and then, you may have some defendants saying, ‘Your honor, I couldn’t have assaulted her, she was my wife,’” said Mr. Suthers.

“Of course, then they’d have to prove the other elements of common-law marriage,” he added. “I don’t think this is going to be a big issue, but you never know.”

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