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When trying to establish a common law marriage in Texas these scenarios alone are insufficient

Over the past few days, the attorneys with the Law Office of Bryan Fagan have worked to share with you some information on common law marriage in Texas. The point of our discussions has been to tell you what is and what is not a common law marriage from the perspective of a family court judge. Ultimately, that is all that matters- having a judge declare that you are or are not common law married. A common law marriage means that to end the relationship you must go through a divorce just like any other person who gets married in a traditional ceremony. 

I have spoken with a number of potential clients of the Law Office of Bryan Fagan in recent years who have tried to convince me that he or she is common law married based on a number of difference circumstances. It takes more than one or two circumstances being in place in order to establish a valid common law marriage. Today we will go through some circumstances that will not establish a common law marriage. 

When is there no evidence of you all holding out to others that you are married? 

To be common law married in Texas, you must be able to establish through evidence offered to the judge that you and your partner held out (made public) to members of your community/family/etc. that you were married. You do not have to state that you are merely common law married or anything like that. However, you do need to plant the idea in these people’s minds that you are married. 

How can you do that? The reality is that it takes more than just a few separate acts held in isolation. Typically, it is a series of acts that occur over a period of months or years that establish the validity of a common law marriage claim. This does not mean that you can’t establish that this condition is in place only over the course of a three-day weekend. However, I believe it is important to know what a more preferable method and which ones is do not work typically. 

For instance, if you and your significant other are renting an apartment it would be a good idea to look through your rental agreement to see who signed on the dotted line. If you both signed on the lease agreement, then you have moved closer to holding out to the community that you are married persons. A lease agreement with only your name does not help your partner in attempting to argue that you are holding yourselves out as being common law married. 

Likewise, if you are admitted into the hospital and when filling out the paperwork state that you are single then this would not go towards showing that you are common law married. Your state of mind at the time of your filling out the paperwork would help show that you do not consider yourself to be married. If you don’t consider yourself to be married, then you cannot be in a position where you are holding out to the community that you are married. 

You need to cohabitate in order to be found to be common law married

Residing under the same roof is an essential part of establishing the formation of a common law marriage. If you and your significant other do not fulfill this requirement then you are not going to be able to establish a common law marriage. 

For instance, even if you have held out to others in the community that you are married and also evidence that you all agreed to be married, that is not enough to establish a valid common law marriage. The reason being is that if you and your partner never reside together as husband and wife then you miss out on the most obvious of the requirements.

I say that it is among the most obvious because residing together in a home is either easily establish or disputed. If you never live with your spouse and keep an apartment or home all to yourself where you go to spend the night, then you miss out on establishing this necessary element to a common law marriage in Texas. 

Even if you did decide to live with your spouse, you need to actually follow through on your family. Having a moving checklist, hired a mover and boxed up all of your belongings for a move to your spouse’s home- but then never following through on the move- does not check this item off the three-part list for establishing a valid common law marriage. You actually have to get the move taken care of and then establish that it occurred in a courtroom to meet the requirement under circumstances like these. 

There is no requirement for intimacy in regard to establishing a valid, common law marriage. In and of itself does not go to show beyond the shadow of a doubt that you are common law marriage. So, too, the absence of intimacy does not alone show that you were never common law married. If you are hanging your hat on the fact you and your spouse never “consummated” the relationship and therefore were not common law married, I believe that you are going to be surprised to learn that this does not establish your case in and of itself. 

How to agree to be married impacts a common law marriage finding

You must agree to be married in order to have a valid common law marriage. Seems like an obvious statement to make but it is one of the three requirements in Texas. This means that you cannot argue that you were ambivalent towards the idea of a marriage and establish a common law marriage this way. Similarly, you cannot state that you assumed an agreement was in place. There needs to be some sort of memorialization (preferably in writing) in order to establish the existence of a common law marriage. Without it, the common law marriage boat will sink.

Physical signs of affection are not in and of themselves sufficient to prove an agreement to be married. I think we can all recall instances of hand-holding and other signs of affection we have displayed with people that we never intended to be married to. Just because you show affection to another person does not mean that you want to be married to him or her. If your plan is to tell a judge that you and your partner are deeply in love and very affection in order to establish a common law marriage, I suggest you have a backup plan ready to go. 

On the other end of the spectrum, if you are truly ready to commit to your partner and intend to ask him or her to marry you then that alone does not constitute a valid common law marriage, either. Even if you follow through with your intent, get down on a knee and ask your girlfriend to marry you then doesn’t mean that you are now common law married or that there is an agreement to be married. Ring or no ring, this is true. 

Consider that when you are intending to be married the typical way that folks get married (proposal, acceptance, engagement period and then marriage) even after getting an “I do” from your girlfriend, that does not mean that you are married. You actually have to get the marriage license and go through with a ceremony in order to be considered validly married in Texas. 

The same is basically true for you in a common law marriage situation. Until you and your partner agree to be married and make that official to one another, you are not married. The intent at a later date to agree to be married is insufficient. You must agree here and now to be married, evidence that desire to the other person and then begin your life as married persons in order to fully agree to be married. Agreeing loosely to be married at some point in the future (after you buy a house or pay down debt, etc.) is not good enough. 

A marriage is not the place for training wheels or a test run

Many of us view dating and marriage as trying to work out the kinks and only then committing to a relationship for the long run. Indeed, that is why I have come to find out many people begin living together before marriage. They want to make sure that the shoe fits just right- to put it in terms of a metaphor we can all relate to. If this describes you then you should pay particularly close attention to this section of today’s blog post

If you are trying to figure out of your relationship is one that has marriage potential, that does not establish a common law marriage. Establishing a common law marriage is about more than a feeling. You need to establish that three conditions (agree to be married, holding out as married and living together as husband and wife) are all present. Stating that two conditions are in place while the other one is almost in place does not pass muster. 

In the event that you are in a position where you need to be able to show that you were common law married, then it is essential that you prove that you and your partner agreed to be married. If it appears to a court that you were in a testing phase in the relationship and would agree to commit to be married if the test phase worked out the way you hoped then it would. A judge will likely find this is not sufficient. 

Commitment does not necessarily equal an agreement to be married

Anyone who has ever been involved in a relationship where your partner has gone through difficult circumstances (an illness, job loss, mental impairment) and have stuck by that person can vouch for how difficult it may have been to do so. Committing to a person who is not of sound mind at that moment or who is going through physical challenges speaks volumes of your patience and character. If that describes you then I hope that the relationship turned out the way that you wanted it to and that your partner’s condition improved.

With that said, if you have ever told your partner that you would be by their side through these sort of difficult life circumstances, that doesn’t mean that you have agreed to be married. An agreement to be married needs to be explicit. Committing to one another for the long run, or telling your partner that you are there for them now and in the future are all assurances of various sorts. However, they fall short of agreeing to be married. 

Of course, you should be careful of what you say to a person who is going through difficult circumstances. Your words of encouragement may be taken the wrong way. You should be clear about your intent so not to confuse or needlessly hurt your partner. However, you should not fear a finding that you were common law married to your partner just because you agreed to stay by their side through a difficult illness or similar circumstance. 

Questions about common law marriage, divorce or family law in Texas? Contact the Law Office of Bryan Fagan

If you have any questions about the content of 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 where we can answer your questions and address your concerns directly. 

Our attorneys are inside the family courts of southeast Texas every day. We commit ourselves to provide the best service and representation of our clients because our clients are our customers and we work for you. It is an honor to serve our community in this way and we hope to be able to do the same for you and your family. 


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