January 5

Frequently Asked Questions Regarding Common Law Marriage and Divorce

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The following are answers to some of the most frequently asked questions about Texas common law marriage and divorce. The answers are general in nature and are designed to help you better understand common law marriage and divorce law.

The law in the individual circumstances of your case may vary and may affect the results in your case. Frequently asked questions regarding divorce, child custody, child support, property division, and alimony will be covered in subsequent blogs.

What is an informal marriage or “common-law marriage”?

An informal marriage or “common law marriage” has the same legal effect as a ceremonial marriage. The way its defined in the Texas Family Code Section 2.401 is by giving examples of proof of a common law marriage including:

(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided by this subchapter; or

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

In law school my law professor in family law class referred to marriages with a license as a ceremonial marriage and those without as either a “common law or informal marriage.”

Under Texas Law a “common law or informal marriage” is created only if certain factual and legal requirements are met.

Are we common law married because we live together?

No, you are not common law married solely because you live together. In Texas three elements must be present to form a Common Law Marriage:

First, you must have “agreed to be married.”
Second, you must have “held yourselves out” as husband and wife.
Third, you must have lived together in this state as husband and wife.

How do I prove that we are informally married?

As mentioned above 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.

Living Together

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.

Holding Out

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.

How long do we have to live together to be common law married?

There is no minimal number of days you must have resided together in Texas to meet this requirement.

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

Do I still need to get a divorce if we are common law married?

An “informal or common law marriage” is treated the same as ceremonial marriage.

One difference is that if one of the spouses contest its existence than an additional step will need to be taken during a divorce to prove the existence of the common law marriage.

Is there a “common-law divorce?”

There is no such thing as a common law divorce. If there is a valid marriage in order to be divorced, you must go through the same divorce process as everyone else.

Some confusion about this matter is created by Section 2.401(b) of the Texas Family Code which states:

“If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.”

However, all this means is that there is a presumption against an informal marriage. Not that there is a divorce or that an informal marriage does not exist. However, with evidence the presumption can be overcome.

Note this section of the family code does not apply to couples who have registered their informal marriage.

How long do I have to prove we were married at common law after we separate?

As mentioned above there is no mandatory amount of time to prove an “informal or common law marriage after separation.”

Section 2.401(b) of the Texas Family Code which creates a presumption that no marriage exists after two years of separation. Meaning sooner is better than later.

Also, if someone marries during that separation another presumption is created under Section 1.102 of the Texas Family Code that:

“When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.”

As mentioned above this does not mean that there is no informal marriage it only means that it may be more difficult to prove that there was an informal marriage.

Can same-sex couples be married at common law?

Yes. On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union.

As a result, informal and common law marriage rules apply to same-sex couples.

Can someone younger than 18 enter into a common law or informal or common law marriage?

No. Under Texas Family Code Section 2.401(c):

“A person under 18 years of age may not:

be a party to an informal marriage; or
execute a declaration of informal marriage under Section 2.402.”

Can I enter a common law marriage or informal marriage if I am already married?

No. Under Texas Family Code Section 2.401(d):

“A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.”

What is a Declaration of informal marriage

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.

If you and your spouse agree a ‘Declaration of Informal Marriage’ can be signed a file with the county clerk.

When is it important to prove a common law marriage?

An informal or common law marriage is generally most important when it comes to property. Two such situations include:

Divorce or
Inheritance

Divorce

If a relationship ends and a couple is married. Then one of or both spouses can file for a divorce. Under Texas community property law, all property acquired during a marriage is property of the marriage.

This is true except for a few circumstances and whether the marriage is informal or ceremonial. As long as common law marriage is proved, community property is divided the same as if the parties were formally married.

Inheritance

Another circumstance where an informal marriage can matter is just like a ceremonial marriage, a spouse is entitled to inherit from the other spouse if the other spouse dies without a will.

If the marriage is proven they may be able to claim a share of the decedent’s estate.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding Divorce, it’s important to speak with one of our Houston , TX Child D ivorce Lawyers right away to protect your rights.

Our D ivorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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