Common law marriage versus Cohabitation- What you need to know

Define the relationship. You’ve been asked to define the relationship with significant others, I’m sure of it. Those situations where you are in a relationship of some sort with a person but are not quite sure what it is, exactly. How casual are the two of you? They used to call it “going steady” way back in the 1950s. That was really for high school students. Now you are an adult who is not sure what to call your current relationship. Where do you even begin?

You and your significant other have been “together” for a long time. Close to a decade. Your relationship has progressed to a point where you are exclusively seeing one another. You love this person. You want to spend your future with him. The word “marriage” has been discussed a time or two. You both like the idea of marriage and exclusivity. A formal marriage ceremony doesn’t excite either of you. At your age, you would like the commitment but just to keep it low-key.

Here you are wondering where to go and what your options are. More than that, you want to know what your current relationship status is legally speaking. You’re aware that Texas honors common-law marriages. Is a common law marriage the same thing as a ceremonial marriage? Let’s dive into this subject more in-depth in today’s blog post from the Law Office of Bryan Fagan.

Living together or married?

It is a huge distinction to draw as far as being common law married or living together. The term that attorneys like to use when referring to living together but not married is cohabitating. This is an essential question for you to answer. The popular belief is that if you and your romantic partner cohabitate with one another long enough then you are automatically common-law married. This is not the case. You want to avoid a situation where you mistakenly believe that you are common law married when you are not. 

What does it mean to be common law married?

Common law marriage is a different way for you to marry your spouse. The result of a common law marriage is the same as a ceremonial marriage. You and your common-law spouse are married. The same protections under the law and the same legal status attach to your relationship. The common law aspect just reflects that the two of you went about marrying in a non-ceremonial way. 

However, that does not mean that the law treats people in a common-law marriage differently than people in a traditional, ceremonial marriage. The law treats you as husband and wife. To end the relationship, you need to file for divorce. There is no common law divorce- only a divorce as anyone else would obtain. This is another major misconception surrounding common law marriage that is important.

Why ceremonial marriages are simple compared to common-law marriage

A ceremonial marriage is what we are all most familiar with. Most of the married people that you and I know were married in a ceremony. Be it before a priest, rabbi, minister, or justice of the peace, the two people decided together to become married. That decision was ratified before a person with the authority to marry individuals in Texas or any other jurisdiction. You receive a marriage license and then file that license with your home country. You are now married. 

Compare that arrangement to a common law marriage. It is possible to be common law marriage but there is more of a grey area associated with this type of relationship. There is nothing ambiguous about a ceremonial marriage. You are married. There are pictures of the wedding ceremony. You had at least a couple of witnesses if not an entire party of people who came to see the event. As much as anything else, your wedding is now a historical event. 

This is not how it works for a common-law marriage, however. Three elements of a common law marriage must be in place simultaneously for the relationship to be properly classified as a common law marriage. Those three elements are: 1) cohabitation, 2) an agreement to be married 3) holding out to the community that you are married (evidence of the marriage). 

What does this mean when trying to prove a common law marriage’s existence?

Again, it is not sufficient that you have had all these three elements in place at one time over many years. Rather, you must show that all three elements are in place at the same time right now for your relationship to be classified as a common-law marriage. Cohabitating in and of itself is not difficult to find. Some studies tell us that more people cohabitate with a romantic partner than are married under the same roof. 

What ends up happening quite a bit in contested family law situations is that one person will insist that your relationship is a common-law marriage. The other will insist that your relationship is merely a cohabitating relationship with no marriage. If you understand anything about community property rights in Texas, then you know that this is a major distinction to draw. The difference between the two relationships can mean millions of dollars going in either direction. 

This is where having an experienced family law attorney by your side matters. Being able to present evidence to a court in support of your position is critical. A common law marriage is determined based on specific facts and circumstances of your life. Not all of them are easy to prove or determine. Again, ceremonial marriages are easy to prove. A common law marriage is not. Not knowing how to collect and offer evidence into the record of your case puts you at a significant disadvantage. An attorney with the Law Office of Bryan Fagan is who you need walking with you through your case.

Does cohabitation alone constitute a common-law marriage? 

Common law marriages are defined by more than simply living together with a romantic partner. This is part of the equation, but it is not the only factor that matters. Think about it. If the only thing that mattered in a common-law marriage was cohabitation, then we would have a lot more common-law married couples amongst us. Rather, the other two factors listed above- an agreement to be married and holding out to the community that you are married- also matter. 

Risks of cohabitation are minimal when it comes to common-law marriage

Those of you who are cohabitating with a significant other can breathe a sigh of relief. There is almost zero risk of a common-law marriage being presumed in your situation. This fear is one that many people run into. An assumption persists that simply being in a long-term, non-married relationship means that you are common law married. We have established that this is not the case. 

The bottom line here is that common law marriages are not established as a matter of relational duration. There is more to it than simply proving that you are in a long-term relationship. Timing is everything. Maintaining all three common law marriage factors throughout the relationship is ultimately what counts. Do not necessarily kick out your boyfriend because you think that you have lived together long enough to be common law married. That is not how it works out in Texas.

What are some hallmarks of a common law marriage compared to cohabitation?

One surefire way to not be in a common law marriage is to not agree to be married to anyone. Do not have a conversation about marriage with your significant other unless you are willing to marry him or her. Be clear with your significant other from the start that you have no interest in a marriage with him or her. Many times, being clear avoids even the thought of your partner alleging a common-law marriage in the future. As I am fond of telling people: to be unclear is to be unkind.

Anything that resembles a marriage should also be avoided. This means that any sort of commitment ceremony is out of the question when wanting to avoid the look of a marriage. Rings, dresses, ceremonies, guests, music, etc. This looks like a marriage to anyone on the outside. Your aunt takes pictures and puts them on Facebook- it looks like a wedding to an innocent bystander. Don’t allow anyone to guess wrong on the status of your relationship. 

As an aside, if you are pushing your significant other towards a non-marriage, commitment ceremony of some type then you should consider a wedding. Being married eliminates a lot of stress in the lives of many people. This is not a blog post intended to discourage marriage. Rather, when you are seeking stability in your relationship then a marriage provides that. Contact the Law Office of Bryan Fagan with any questions about how marriage changes your life depending upon your specific circumstances.

What happens when you play around with the word “marriage”

Many of us, when we are first dating someone, will fall into the habit of referencing marriage with that person. It seems cute at the time. We have all these positive emotions surrounding the new relationship. It is only natural to express that affection in terms of mankind’s most firm relationship status- marriage. However, by talking about your relationship in these terms you are establishing an intent you may not be prepared for. 

This means posting things on social media about weddings, and wedding plans, referring to your significant other as your spouse or “wife material” is not a good idea. Simply put, if you want to get married then go through with a marriage ceremony. Or, come up with an agreement to be married and enter a common-law marriage. This is not an unknown as far as how to go about doing this. 

However, when you don’t want to be married just stay away from the topic altogether. Government documents and simple paperwork are used as evidence in common-law marriage cases frequently. Avoid being caught in this position by not entering a common law marriage unintentionally.  

Don’t take the easy way out and then find yourself married

Picture this. You have a chronic medical condition. Diabetes let’s say. You lost your job a few months ago and have been going without your medications since then. These medications are not optional. These are essential medicines to keep you functional Every time you go to see your primary care doctor, he implores you to figure out how to get back on this medication. He was able to help you get less expensive medicine for a few months but that has come to an end. 

Now you are desperate to get back on this medication. Your longtime boyfriend has open enrollment coming up on his employer-provided health insurance. It is tempting to claim that you are married and get on his health insurance plan. Sign some paperwork and then that’s it. This is otherwise known as fraud, however. You are breaking the law by doing this. You are also setting yourself up for a common-law marriage finding. 

The more you and your significant other share bank accounts and commingle your money, the more likely it is that this can be used as evidence to prove the existence of a common law marriage. There is nothing wrong in theory with owning a house with your significant other or even having joint bank accounts. However, the more your financial lives are intertwined together the more likely it is that presumptions regarding common-law marriage can go against you.

Should you cohabitate with your significant other?

Beyond any religious or moral thoughts on the subject, there is nothing in the law that prohibits you from cohabitating with someone if you are not married. This includes circumstances where you cohabitate with a romantic partner to whom you have no interest in common law marrying. Unless you engage in all three phases of the common law marriage you will not be found to be in a common law relationship. This is not something that you have to spend your days and nights worrying about in other words.

With that said, cohabitation is a major component of determining a common-law marriage in Texas. Without cohabitation, there is no common-law marriage. Depending upon your circumstances and views towards a potential divorce this would affect whether you even consider cohabitating with your significant other. Never living with or cohabitating with your partner would negate any arguments regarding a common-law marriage.

An ideal situation for a common law marriage would be cohabitation, holding out to the community that you are married and then calling yourself a spouse on tax forms as well as health insurance-type documents. Throw in some photos of a commitment ceremony of some kind and you have all the trappings of a common-law marriage. This is the game plan for a common-law marriage and provides you with an overview of what to avoid if you do not want to be in this type of relationship.

How can you prove cohabitation?

If you are in a position where you need to try and prove a common law marriage, then proving that cohabitation element can be a challenge. If you or your partner have multiple residences, or you stay frequently then this compounds the difficulty. You would need to rely upon the testimony of family, friends, or neighbors to discuss how frequently you are at the residence in question. Evidence of frequent sleeping over at that residence with your spouse is the type of proof you need.

Providing evidence through your mail in receiving documents such as utility bills in both names can show an intent towards a common law marriage. This is an issue that many families run into regarding common-law marriage. As discussed earlier, a common law marriage is this simple to prove as a ceremonial marriage is. That doesn’t mean that it is impossible.

Working alongside the experienced family law attorneys with the Law Office of Bryan Fagan is a way to assist in proving the existence of a common law marriage. We understand the elements of a common-law marriage and how to present evidence in support of your contention. Our office thanks you for joining us today here on our blog. We post unique and informative blog posts each day about various areas of Texas family law. Contact us today for a free-of-charge consultation where we can answer your questions.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan    

If you have any questions about the material contained in today’s blog post, 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 in person, over the phone, and via video. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.

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