What Does It Mean to Be Common Law Married in Texas?

In yesterday’s blog post from the Law Office of Bryan Fagan, we clarified some rumors and misconceptions surrounding what common law means. It appears that many falsehoods are circulating in our culture concerning common-law marriage. Before assuming you’re in a common law marriage when you’re not, I suggest reading yesterday’s blog post to determine if any of the myths discussed apply to you and your situation.

Once you have read yesterday’s blog post, you are ready to read today’s. I will walk you through what it means to be common law married, including the three elements that must be present in every living situation for it to be considered a valid common law marriage. If you have any questions about either blog post, I will invite you to contact the Law Office of Bryan Fagan. Did you know that our licensed family law attorneys offer free-of-charge consultations six days a week? These consultations will allow you to ask questions about your specific situation and receive direct feedback from one of our attorneys.

What are the requirements of a common-law marriage in Texas?

To be considered legally as being common law married, you and your significant other must meet the following requirements:

  1. Agree to be married to one another
  2. Live together as a husband in wife in the same residence
  3. Represent to other people in Texas that you are married as husband and wife (we will talk in detail what it means to represent to other people that you are common law married)

A common law marriage is not in place unless all three of the elements are met simultaneously. That means that if all three elements are met for six months and then one falls away, you were only common law married for six months. If you always had some combination of two elements in place over a decade but never had all three in the area simultaneously, you were never common law married.

To establish a valid common-law marriage in Texas, beyond meeting the elements of cohabitation, shared responsibilities, and holding out as married, you must also fulfill additional criteria. Both you and your spouse must have been at least 18 years old, not related, and not married to someone else when the common law marriage began. Once these conditions are met, you can be considered in a common-law marriage. However, the validity of a common law marriage hinges on the specific circumstances of your life. Should your partner claim the existence of a common-law marriage in court, you will need compelling evidence to refute it.

What does an agreement to be married mean?

The first condition to be a valid common law marriage in Texas is that both partners must agree to marry. That agreement must be a present agreement to be married, first and foremost. You must mutually agree that you are married right now and it is your intent and desire to be married. You cannot agree to be married in four months. Your girlfriend cannot hold the desire for you all to be married while you reject the idea. You both must agree to be married right now for the first condition of a common-law marriage to be met.

Evidence is crucial in establishing that this condition is met. This is true particularly when it comes to proving the existence of a common-law marriage in a court of law. Personal opinions, like those of family, hold no legal weight. The determination of common-law marriage lies within the purview of a family court judge. If called upon to prove the existence of the marriage, tangible proof is necessary. A written contract affirming your agreement to be married, signed by both parties, serves as a solid starting point. Like a marriage license, tangible proof of your agreement is vital for a civil marriage. Without such evidence, establishing the existence of your marriage may prove challenging.

What does it mean to live together in a common-law marriage?

You and your spouse must live together as husband and wife to be in a valid common law marriage and you all must have one place where you live. You must consistently eat, sleep and live your lives in that home. It is not enough to be intimate with one another in that home and then have one of you leave to do the majority of your activities of living in another location. That home must be the residence of both you and your significant other.

Think about what married people do and then do that to establish that you are cohabitating. Do you and your partner cook meals together in the house? Are you involved in raising children in the household? Do you both handle tasks such as laundry, managing bills, and paying the mortgage? Are the utilities in both of your names? Answer these questions to determine if you are in a cohabitation situation.

On the other hand, if you have an apartment that you keep just in case things “go south” in the relationship, this is pretty good proof that your intent is not to live together as husband and wife. If my wife found out that I was paying rent on an apartment, sort of as a backup plan if the marriage fails, she wouldn’t be too pleased with me. That rental contract will also be pretty good proof that you didn’t intend to be common law marriage and that you were not living together as husband and wife.

What does it mean to be holding out to other people that you are married?

The final element of a valid common law marriage in Texas is that you and your spouse must represent to other people that you are married. You and your spouse cannot be secretly involved in a common-law marriage. Actions speak louder than words in many areas of life, and this one is no exception. You do not need to shout from the rooftops that you are married to your spouse.

Buying a home and taking out loans together are all clear signs that you are treating yourselves as married people. If your girlfriend starts to use your last name in official or unofficial capacities, then it is pretty clear that you all are holding out as married. Speaking it into existence isn’t a bad idea, but your actions are even more important for a judge looking into your situation.

Is it even crucial whether or not you are common law married?

Understanding the significance of common law marriage is crucial. While it may seem inconsequential to simply refer to yourselves as husband and wife, the legal implications are substantial. If a family court recognizes your relationship as a common-law marriage, it will be treated similarly to a traditional marriage. Importantly, this means that to dissolve the marriage, you would need to file for divorce and navigate through the legal process. Even if you unintentionally entered into a common-law marriage, you cannot simply exit it at will; divorce is required. Assets and debts considered part of the community estate must be divided between you and your spouse upon divorce.

What does this mean for you? Firstly, you should exercise caution about entering into a common-law marriage. It can entail financial costs, consume time, and induce stress in the future. If you genuinely desire to marry your significant other and envision a lifelong commitment, then pursuing formal marriage is advisable. Opting for a marriage ceremony can be straightforward, inexpensive, and relatively trouble-free. Marriage clarifies your status, preventing future confusion or disputes about your relationship’s legitimacy.

If you want to avoid the risk of your relationship being classified as a common-law marriage, refrain from putting yourself in a position where you’re perceived as married. Common-law marriage hinges on three conditions: living together, holding yourselves out as married, and agreeing to be married. Whether these conditions were present in your relationship is distinct from whether your “spouse” can prove them to a judge, who may view your circumstances differently. Your opinion on the matter is ultimately irrelevant; if your significant other can prove you’re in a common-law marriage, the actual state of your relationship doesn’t matter.

What situations can help a judge believe that you are common-law married to your significant other?

Without a formal marriage ceremony, it’s difficult to prove common-law marriage to a judge. To address this concern, discuss marriage with your partner and consider a church or courthouse ceremony. This way, there will not be any doubt about whether or not you are married to this person. If this isn’t possible and you can’t talk the other person into going through with a traditional marriage ceremony, your option would be to go to court and present evidence of a common-law marriage being in place. We will discuss with you tomorrow in our blog post what situations are hallmarks of common-law marriage.


Understanding what does common law mean is crucial in dispelling misconceptions surrounding common-law marriages. Clearing up common myths through resources like this blog helps people accurately assess their marital status. Understanding common-law marriage criteria and implications helps avoid misunderstandings and ensures confident navigation of relationships and legal rights.

In the meantime, if you have any questions about the material that was shared with you today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are an excellent opportunity to ask questions and receive direct feedback about your case and life. We hope that the information we shared with you today has been helpful. Going through a difficult situation with family law matters is never easy, but having trustworthy representation behind you can help your cause a great deal.


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

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  1. What Does Common Law Mean in a Divorce?
  2. Common Law Marriage and Texas Divorce Guide
  3. How to Get a Common Law Divorce in Texas
  4. How to Protect Yourself or Your Client from Denial of Judicial Recognition of Obergefell Retroactivity in Common Law Marriage
  5. Can Common Law Marriage be Backdated / Is Obergefell Retroactive?
  6. What Makes a Common Law Marriage Valid in Texas?
  7. When trying to establish a common law marriage in Texas these scenarios alone are insufficient
  8. What living arrangements may lead a judge to conclude that you are common law married?
  9. Wondering if you’re common law married in Texas? Read this to find out if you are
  10. How can you tell if you are common law married in Texas?
  11. Common Law Marriage in Texas: Defining your relationship
  12. Can you get alimony in Texas when your common law marriage ends?
  13. The Dirty Trick of the Common Law Marriage
  14. Common Law Marriages in Texas, Part Two

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