Family Law Articles
Common Law Marriage in Texas
In today's modern world, unmarried couples living together is commonplace, far from the taboo it was at one time. Many in such relationship have heard of common-law marriages and sooner or later they may worry that they may, in fact, be legally married under Texas law, especially when the relationship ends.
Myths or simply misconceptions about common law marriage have caused many unnecessary anxiety, but it is important to know what not to do to avoid an unwanted common law marriage. The most common misconception is the concern that if you live with your partner, Texas considers you married. While cohabitation is one element of a common law marriage, that alone would not qualify as a common law marriage.
Requirements of an Common Law Marriage in Texas
Absent a valid declaration of marriage, to prove a common-law marriage was created in Texas, the party alleging the existence of a common law marriage must show that the couple
(1) agreed to be presently married, (as opposed to an agreement to get married in the future)
(2) lived together in Texas after the agreement, and
(3) represented to others that they were married while still living together (holding themselves out as married),
Standard and Burden of Proof
The party alleging the existence of a common law marriage has the burden to show each requirement by a preponderance of the evidence. If the action is brought more than two years after the couple separated and stopped living together, it is rebuttably presumed that the parties did not agree to be married.
Consequences of a Common Law Marriage
Once established, common law marriages created in Texas have the same validity as a ceremonial marriage. Thus, the marriage will be recognized by all other states pursuant to the constitution's full faith and credit clause.
Ending a Common Law Marriage
Much to the dismay of some, common law divorce does not exist. Once the common-law marriage is established, it can only be dissolved as any other marriage could, by the death of either party, or by petitioning the court for an annulment or divorce.
Same Sex Common Law Marriages in Texas
The Texas statute for common law marriages refers only to marriages between a man and a woman. However given the recent U.S. Supreme Court decisions effectively legalizing same sex marriage throughout the nation, Texas courts have begun recognizing common law marriages between same sex couples in Texas.
Although the Texas Family Code refers to it as "informal marriage", such informal marriages are regularly referred to as common-law marriages by most non-lawyers. This article uses "common-law marriage" to avoid confusion of the reader.