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What is common law marriage

Texas is one of a handful of states that recognizes informal marriages as valid. These marriages are not entered into during a ceremony or consecrated in church. The couple does not obtain or file a marriage license. Yet if they satisfy the statutory requirements, Texas law views these individuals as legally married and entitled to all of the benefits available to formally married couples. 

What Is Common Law Marriage?

Common law marriages are marriages without formalities. All that Texas Family Code § 2.401(a)(2) requires is factual evidence that:

  • The man and woman agreed to be married,
  • They lived together in Texas as husband and wife after making the agreement, and 
  • The couple represented to others that they were married.

All three elements must occur in the same time period. The person who is seeking to establish that an informal marriage exists has the burden of proving these elements by a preponderance of the evidence.

Agreement to Be Married

Becoming engaged to be married in the future is not sufficient to show an agreement. Instead, the party must provide evidence that the couple intended to have an immediate and permanent marital relationship. The proponent of the relationship can support their claim with direct evidence, such as one party’s testimony that they agreed to be married. Or this party may rely on circumstantial evidence. An example of this would be demonstrating that they exchanged wedding rings.

Living Together As a Married Couple

After agreeing to be married, the couple must cohabitate. Texas law does not require that the parties live together for a minimum time period. It is a myth that people must share a roof for seven years before being declared married under common law. Indeed, the pair do not even need to live together continuously. But they must share a home with the intent of living as a married couple. 

Representing to Others

There is no such thing as a “secret common law marriage” in Texas. The couple must consistently hold themselves out to others as married to validate an informal marriage. Evidence that they introduced themselves as husband and wife once or twice will not suffice. 

Courts closely scrutinize common law marriage claims and will look for facts showing that the couple had a reputation in the community for being married. While testimony supports such claims, stronger evidence often comes from documents listing the individuals as married. Examples include:

  • State and federal tax returns,
  • Mortgage documents or lease agreements,
  • Applications for public benefits,
  • Health insurance policies, and
  • Beneficiary designations.

It also helps if one party routinely uses the other’s last name and if any children from the relationship bear the same last name.

Should the couple belatedly decide that they want more substantial proof that a valid common law marriage exists, they do have the option to file a Declaration of Informal Marriage with the county clerk.

Can Same-Sex Couples Have an Informal Marriage?

Yes. In 2015, the Supreme Court upheld same-sex couples’ right to wed in Obergefell v. Hodges. Though the Texas Legislature did not subsequently update the language of Texas Family Code § 2.401(a)(2), Texas does recognize same-sex common law marriages. Moreover, it allows couples to use whatever date applies to the relationship, even if the pair agreed to be married prior to 2015. 

Common Law Marriage Rights

Informally married couples have the same rights afforded to those in ceremonial marriages. The income, property, and debt acquired during the common law marriage are all considered community property. If one spouse dies without a will, the other inherits as provided by law.

With these rights come the responsibilities of entering a valid marriage. Most notably, if one spouse wishes to dissolve the union, they must file for divorce. There is no informal “common law divorce” option. However, if you separate and live apart for more than two years without taking any action, the law will presume the alleged informal marriage never existed.

Contact a Texas Estate, Probate, and Litigation Attorney for Advice Related to Common Law Marriage

Issues associated with informal marriages often arise when families are planning for the future or probating an estate. Understanding the law pertaining to these marriages is the first step in determining how to proceed. At Robbins Estate Law, our experienced estate planning and probate attorneys in Austin, Cedar Park, and Round Rock can help you plan the best course of action. We help families all over Texas achieve emotional and financial security for their loved ones. Speak to an attorney in one of our offices today. 

Author Photo

Kyle Robbins

Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.

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