Defacto Marriage? Can a woman divorce a man without Marriage?

Common law marriage is legal in Texas. Texas is one of the few states that honors informal or common-law marriages. However, in considering the misnomers and confusion regarding common-law marriages it is well worth our while to speak today about this issue in greater detail. The reason I say this is because of all the topics in Texas family law I think that there is more “he said, she said” and old wives tales told about common law marriage than anything else. To clear up these misconceptions and help you and your family determine how this subject relates to you all let’s spend some time today going through common law marriage and what it can mean to your family now and in the future.

What are some myths surrounding common law marriage?

As opposed to the myths and misnomers surrounding common-law marriage, there are clear-cut requirements in place under the law in Texas that will determine whether or not you are actually in a common-law marriage. What many people fear is simply wandering into a common-law marriage when you believe that you are in a dating or informal relationship. You will see people talk about not even realizing that they were in a common-law marriage when, in fact, that is exactly where they were in their relationship. Many times it will be an unsuspecting man who will stand before you shocked to learn that he was in a common law marriage. From that, we are to assume that the laws in Texas surrounding common-law marriage are tricky or unclear.

This could not be any further from the truth. There are specific ways for two people to be in a common-law marriage. As we are about to get into this, you will see that these specific requirements do not dance around the common law marriage issue, either. You and your spouse would need to wholeheartedly embrace the concept of being married to find yourselves in a common-law marriage. There is no vague, gray middle-ground for you to find yourself in regarding a common-law marriage. Either you acknowledge that you are in a common law marriage, or you will not be common law married. It is not enough to simply live with your partner for an extended period and then a common law marriage automatically happens.

The three requirements for a common law marriage in Texas are you must live together with your spouse, agree that you are married, and then hold out to the community that you and your partner are married. As you can see, there is a lot to this that both partners need to actively be involved in the process and must both acknowledge that your relationship is a marriage and not a dating relationship. Even though the participants in a common law marriage must both fully buy into the nature of the relationship that still leaves the ground for the two people to have some degree of disagreement over the nature of the relationship and whether there is a common law marriage.

If this is a situation that sounds familiar to you then hang tight with us. The attorneys with the Law Office of Bryan Fagan are going to walk you through this process so that You understand exactly what it means to be in a common-law marriage and do not fall prey to the talk you may hear on the Internet or among those people who may not have a solid grasp on what it means to be common law married. Our attorneys and staff take pride in being able to serve our community and we would invite you to meet with us for a free-of-charge consultation that one of our used-area office locations. These consultations are a great opportunity for you to learn more about the world of Texas family law and to begin the process of finding out what it means to be involved in a family law case.

How is a common law marriage defined in Texas?

Getting married without a marriage ceremony is what a common law marriage is. You can be legally married in Texas without having exchanged vows and had a formal ceremony. This is why common law marriage is also known as an informal marriage. However, as we alluded to a moment ago there are specific requirements that are in place for a common-law marriage to be established. Until and unless the specific requirements are met your relationship is not a common law marriage. Depending upon your perspective that may either be a good or a bad thing.

Despite what you may have heard from other people, proving that you are in a common-law marriage does not depend upon how long you and your partner have been living together. Additionally, the number of children you have, if any, with your partner is not the number one factor add play when it comes to this subject, either. Keep in mind, also, that a common law marriage is held to be on par with a ceremonial marriage period once you establish a common law marriage with your spouse then you are treated as married under the law just like anyone who had a formal ceremony.

Proving a common law marriage can be easier said than done depending upon your specific circumstances. If you would like to be able to prove that you are in a common law marriage you would need to show that the following conditions have been met. First, you and your partner would need to be able to show that neither of you were already married to anyone else at the time your marriage began. This includes being married informally and formally. Bigamy is against the law in Texas and if you intend to enter into an informal marriage but are already married the second marriage will be void and it will be treated as if the second, common law marriage was never started in the first place.

Next, you and your partner both need to be at least 18 years old when your marriage begins. The next requirement that is in place is that there must have been an agreement between the two of you to be married. In many cases, this is the toughest requirement to prove if you are the spouse who needs to do so in the future. An agreement to be married can look like something of a marriage contract wherein you and your spouse both agree to be in a common-law marriage. However, it is unlikely that you have some sort of written agreement to be married. This agreement to be married is likely going to look like something where you and your spouse have a discussion and talk through the issues then agree to married. However, since this is an oral agreement, it may be difficult to prove in the future.

What we can consider to be the next requirement for a common law marriage in Texas is for you and your spouse to live in Texas as a married couple once you have agreed to be married. This looks like residing together, sharing household duties, combining your incomes, or otherwise sharing in the household finances in performing other actions that are commensurate with being married. There are some things that you and your spouse can do as far as your living arrangements and habits that are unmistakably the qualities of a married couple. If it were to appear to a casual observer that you and your spouse were married then you are probably off to a good start as far as proving an informal marriage.

Finally, you and your spouse must have held that to others that you were married. Or different people this could look like different things. It could be that you and your spouse had a recently married party or other event we’re in which you made others aware of your marriage having begun. It could look more like you introducing your spouse as your husband or wife rather than just as a significant other. There are many ways to prove that you held out to others that you were married. The key is making sure that consistently the community at large is aware of your marriage. You do not need to specify that yours is a common-law marriage or anything of that sort. All you need to do is make it clear that you are married and not merely in a dating relationship.

When would you need to be able to prove that you were in an informal marriage?

Another way of asking this question is: why would it be important for you to be able to prove that you were in a common law marriage in the first place? After all, all we’ve done so far today is discuss what it takes to be in a common-law marriage, and we’ve not yet gotten into what a common-law marriage means for you and your spouse. Being able to prove this or in a common law marriage can be important mostly for purposes of when the marriage is coming to an end. What I mean by this is that proving that you were in a common-law marriage means that you can also prove that a divorce is necessary to end the relationship.

Another factor to consider in this discussion is that if you and your spouse are married then there is the matter of inheritance rights to consider as well. In Texas, if a person dies without a will then a probate court would look to distribute property according to the laws of intestacy. Dying intestate means that you die without a will. Is almost certainly going to be immediate family members who end up inheriting most if not all your property when you die without a will. If you die married, then your spouse will inherit community property from you. Your children would inherit a portion of your separate property. If you die without a spouse or children, then the law would look to extended family to pass down property that you own.

It is in this light that a common law marriage becomes incredibly important to prove. When you were married ceremonially there isn’t much of a doubt concerning whether you were married or not at the time of your death. Married people have a firm start date for the marriage and would also have a firm end date for the marriage through a divorce. All these events are documented for record-keeping in your jurisdiction. However, when you are common-law married the court probably will not keep track of the beginning point of your marriage unless you and your common-law spouse choose to sign a declaration of informal marriage and file that with your county clerk.

Otherwise, if your spouse passes away then you may be left in a situation where you try to prove that you were in a marriage instead of just a dating relationship. Depending upon the circumstances of your case this may be more difficult than you would like it to be. Trying to prove all three of the marriage requirements for an informal marriage can end up being quite difficult. Couple these challenges with the idea that your spouse may have children from a prior relationship who have a vested interest in not allowing you to prove the existence of that common-law marriage.

How do you prove a common-law marriage?

All in all, it can be difficult to find yourself needing to prove the existence of a common-law marriage. Although it can be done, it is almost certainly going to be easier for you if you can hire an experienced family law attorney to be in your corner for purposes like this. Although you may believe that you have all the evidence you need to be able to prove your common law marriage there may be other parties to have evidence to the contrary. This could be contrary evidence in the context of a divorce that you filed. Your spouse may try to argue with the court that you and he or she were never married in the first place. Or, if your spouse has passed away then his or her children may try to argue that you were not in a common law marriage and therefore should not be in a position to inherit property from their parent.

Agreeing to be married and then representing to others that you are married are two of the three requirements to be able to show a valid common-law marriage in Texas. Keep in mind that you can prove each of these items but do not have to do so based on one fact or set of circumstances. For instance, a family law court can assume that your agreement to be married and holding out to others that you were married means living together or telling others that you were married. Another common way that common law married individuals show an agreement to be married is by using their partner’s last name or filing a joint tax return. Leases, mortgage documents, and other paperwork like this can also go a long way to show that you considered yourself to be married as did your spouse.

What does it mean to hold out to others that you are married?

Holding out to others that you were married could mean that the two of you were introduced to each other has your spouse at dinner parties or things like that. As in most family law cases, this is almost certainly going to be a situation where it is a fact-by-fact and situation-by-situation basis on which a court will decide about your particular common law marriage. What worked for the family down the street may not work for you. As a result, you should consider what facts and circumstances are relevant to your case and how they may end up looking in a circumstance where you need to either prove or disprove the existence of a common law marriage. Hindsight is, of course, 20/20 and what you see now may not have been within your scope of vision at the time the events occurred.

In any event, having an experienced family law attorney to walk with you during your case can be the difference between a favorable and unfavorable outcome. When so much of your case depends upon how past events are viewed through present circumstances having a storyteller, investigator, and experienced attorney all rolled into one can be incredibly important. For that reason, we recommend contacting the Law Office of Bryan Fagan to speak with one of our experienced family law attorneys today. We can be the difference for you in your case just as we have been able to do on behalf of so many current and former clients.

Book an appointment with Law Office of Bryan Fagan using SetMore


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

Divorce Wasting Assets[4] If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: 13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them” Today!

Other Articles you may be interested in:

  1. How to Tell Your Spouse You Want a Texas Divorce
  2. I don’t want to Stay Married but I am Afraid to get Divorced in Texas
  3. 7 Steps – When Your Spouse Wants a Divorce In Texas – But You don’t!!!
  4. 5 Things to Know About Divorce in Texas
  5. Are your marital arguments an indicator of a future divorce?
  6. Britney Spears’ divorce
  7. Q and A regarding a military divorce
  8. Reclaiming your identity: The power of changing your name after a divorce
  9. Retirement, Divorce, and Social Security: A Roadmap for Late-Life Transitions
  10. Do It Yourself Divorce Guide from the Law Office of Bryan Fagan
  11. Transitioning Homes During Divorce: Stress, Finances, and Planning
  12. Why Do First Responders Get Divorced?
  13. Why Do First Responders Have a High Divorce Rate?
  14. Can My Wife Take My Inheritance In a Divorce in Texas?
  15. Can You Divorce Without Splitting Assets in Texas?
  16. Mediation Essentials for a Texas Divorce
Categories: Uncategorized

Share this article



Contact Law Office of Bryan Fagan, PLLC Today!

At the Law Office of Bryan Fagan, PLLC, the firm wants to get to know your case before they commit to work with you. They offer all potential clients a no-obligation, free consultation where you can discuss your case under the client-attorney privilege. This means that everything you say will be kept private and the firm will respectfully advise you at no charge. You can learn more about Texas divorce law and get a good idea of how you want to proceed with your case.

Plan Your Visit

Office Hours

Mon-Fri: 8 AM – 6 PM Saturday: By Appointment Only

"(Required)" indicates required fields