In Texas, many people are aware that Texas recognizes
common-law marriage. However, not everyone that I meet with is aware of what it takes to meet
the Texas statutory requirements of being common law married or why it
Recently I was meeting with a man who was bewildered that he had been sued
for divorce. When I asked him about his case he plopped down an original
petition for divorce and said, “I want to know how I am married?”
"Am I married?" Seems like a simple question, right? Sometimes
however it is not. I asked him “You, never had a ceremonial marriage?”
He said “No.” I then started asking him the following questions:
Q: “Have, you ever lived together?”
Q: “Have, you ever introduced each other as being husband and wife?”
Answer: “yes, out of convenience.”
Q: “Have, you ever filed taxes together?”
Answer: “Well we have kids together so I filed as head of household and
claimed her and the kids on my tax return.”
I let him know that he and his ex may be common-law married. "Common Law marriage is something that exists in Texas, although it is called Informal Marriage
under the Family Code."
In this article, we will discuss some of the common questions people have
regarding common law marriage in Texas.
Is Common-Law Marriage a Texas Thing?
In the above consult the man was extremely frustrated that Texas had laws
that recognizes the
Common-Law Marriage. However, Texas is not the only state the following states have laws regarding
common law marriage:
District of Columbia
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma (possibly only if created before 11/1/98.
Pennsylvania (if created before 1/1/05)
The Texas Statutory Requirements for a Common-Law Marriage
An informal or common-law marriage is a marriage between two people who
have not obtained a marriage license and participated in a marriage ceremony
and under Texas Family Code Section 2.401:
- Agree to be married
- Live together in Texas as husband and wife
- Hold themselves out to others in Texas as husband and wife and
Agreement to be Married
One of the elements to establish a
common-law marriage the parties must agree to be married.
This means that in an evidentiary hearing the spouse alleging a common-law
marriage will need to put on evidence that the parties intended to have
a present, immediate, and permanent marital relationship wherein they
both agreed to be husband and wife.
An agreement to get married at some later time in the future is not sufficient
to establish an agreement to be married. If there is no written agreement
to be married, your actions and the actions of the other party can be
used to prove that there was an agreement to be married.
The next element need to establish a
common-law marriage, is that the parties must have lived together in Texas as husband and wife.
Texas case law states that to meet the element of living together as husband
and wife, you must demonstrate that you maintained a household and did
things that are commonly done by a husband and a wife.
There is no minimal number of days you must have resided together in Texas
to meet this requirement.
The final element needed to establish a common-law marriage is that parties
must have told other people in Texas that they were married.
This can be accomplished either by:
- Spoken words or
- Actions and conduct by each person may be enough to fulfill the requirement
of holding out.
In other words there can be no secret common-law marriage.
Is there a Statute of Limitations on Establishing a Common-Law Marriage?
No. Contrary to what some people believe, there is not statute of limitations
for establishing a common-law marriage. Provided that the elements are
met that :
- there’s an agreement to be married
- that the couple tells other people about it and
The couple could live together for
even one day
This could be enough to establish a common-law marriage.
Legal Effect of a Common-Law Marriage
If a common-law marriage exists it has the same legal significance as a ceremonial marriage. This means:
- you would have to file for divorce when the relationship ends just as you
would if you had a ceremonial marriage.
- Once a common-law marriage the only way to end it is by death, divorce,
There is no such thing as a
If a common-law marriage exists, then all property and debts accumulated
during the duration of the common-law marriage that are community property
are subject to division by the Court at the time of the
Alternatively, a couple can file a “declaration of informal marriage”
under Texas Family Code Section 2.401(a)(1) with the county clerk as prima
facia evidence that the parties have entered an informal marriage.
Practically speaking, if there are children resulting from a common-law
marriage or property acquired during the term of the marriage, as a divorce
is sometimes the best and easiest way to dissolve the relationship.
One example of this is from a case where I represented a mother who in
addition to having a child with the father purchased a home with him.
Unfortunately, when I looked at the elements to see if we could establish
a common-law marriage there was no evidence in support.
It was easy enough to establish Orders regarding the child. Unfortunately,
disentangling her from the house could not be accomplished at the same
time and must be pursued in a different lawsuit. This was frustrating
for her because the father was living in the house rent free and was not
paying any of the bills.
Why you may want to deny the existence of a common-law marriage
The main reason people want to prove that a common-law marriage is stuff.
They want to divide up property that may have been acquired during the marriage.
That happens to also be the most common reason why someone wants to deny
the existence of a
common-law marriage. They want to avoid allowing their alleged spouse from getting community
property rights over any of the property.
If the party with most of the property can prevent the existence of a common-law
marriage being proven, then the alleged spouse has no rights to their property
Proving Two People are Common-Law Married
One of the biggest ways a common-law marriage is different than a ceremonial
marriage is if it is contested the spouse alleging a marriage will need
to put on proof.
If the marriage is contested it may be necessary to have a mini trial or
evidentiary hearing on the existence of the marriage. If the Jury or Judge
finds in favor of a marriage then the
divorce process will proceed as normal.
Some evidence of a
common-law marriage could include:
- Filing a federal income tax return with the other person named as your spouse;
- Obtaining a life insurance policy and identifying the other party as your
spouse and designating them as beneficiary;
- Purchasing a home or other real property where the deed is signed by you
and the other person as husband and wife;
- Taking out a loan with the other person being identified as either your
- Sending cards or letters to the other party that state “from your
loving husband,” or “to my loving wife;”
- Hosting or attending an event where you introduce the other person as your spouse;
- Your family members referring to spouse as their son-in-law or daughter-in-law;
- Introducing the other person to your colleagues, neighbors, and/or friends
as your husband/wife; and/or
Does Texas Recognize Common Law Marriages from Other States?
Maybe. To prove the existence of a marriage that purportedly occurred in
another state or foreign country, the party alleging a marriage will need
to perform a foreign-marriage analysis.
This is done by answering a series of questions aimed at determine whether
Texas Law or the law of the foreign state or country applies and whether
under that law, the requirements for proving up a marriage have been met.
These questions include:
- Were the marriage requirements met under law of either state?
- Which state’s law controls?
- Texas Public Policy
- Full Faith & Credit Clause
If a Texas court refuses to recognize a foreign marriage because it violates
Texas public policy the parties to the foreign marriage can return to
the state or country where the marriage took place and seek a divorce, there.
Full Faith & Credit
Under the full faith and credit clause, each state must give full faith
and credit to the judicial proceedings, public acts, and records of other states.
Some Texas courts have held that because marriage is not a judicial judgment
and is more like a contract or license, a marriage in one state has never
been considered constitutionally entitled to automatic recognition in
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