Gavin Howe
Same-sex marriage became legal in Texas in 2015 after the U.S. Supreme Court issued their decision in Obergefell v. Hodges. This ruling required all states to issue marriage licenses to same-sex couples. In 2022, the federal Respect for Marriage Act created statutory protections for same-sex marriages. This law requires all states to recognize valid same-sex marriages performed in another state. Texas is one of the few states that recognize common-law marriage, which is a valid and legal way for a couple to marry. This means that same-sex couples in Texas can enter into an informal marriage, also known as a common-law marriage.
| Characteristics | Values |
|---|---|
| Common law marriage recognized in Texas | Yes |
| Common law marriage recognized for same-sex couples in Texas | Yes |
| Requirements for common law marriage in Texas | 1. Both parties agree to be married 2. After the agreement, they cohabitated (lived) together in Texas as spouses 3. They represented themselves to others in Texas to be married |
| Minimum time requirement for cohabitation in Texas | No |
| Registration of common law marriage in Texas | By filing a Declaration of Informal Marriage with the county clerk in the county of residence |
| Common law marriage recognition in other states | Yes, since all states recognize legal marriages from other states |
| Divorce process for common law marriages in Texas | Similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce |
| Statutory protections for same-sex marriages in Texas | Yes, provided by the federal Respect for Marriage Act, 2022 |
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What You'll Learn
Common-law marriage in Texas: requirements
Texas is one of the few states that recognize common-law marriages. These informal unions, which don't require a marriage license or traditional ceremony, can have serious legal consequences, especially when they dissolve.
To be eligible for a common-law marriage in Texas, certain requirements must be met. These are:
- Age: Both spouses must be 18 years of age or older.
- Marital Status: Neither spouse must be married to anyone else.
- No Blood Relationship: The spouses must not be related by blood and must not be biological relatives.
- Consent: Both spouses must agree to be married to each other.
- Cohabitation: After agreeing to be married, they must live together as spouses in Texas.
- Representation: The couple must represent to other people that they are married (sometimes called "holding themselves out as married").
There is no minimum time requirement in Texas for the length of a relationship to establish common-law status. However, the couple must cohabit in Texas and maintain a household together, doing things associated with being a married couple.
To prove a common-law marriage, a couple may need to provide evidence such as joint financial accounts, shared property, and testimony from friends. They can also register their common-law marriage with the state of Texas by filing a declaration with the county clerk, although this is not required.
Same-sex couples in Texas can also enter into a common-law marriage, as the state recognizes same-sex marriages following the 2015 Obergefell v. Hodges U.S. Supreme Court ruling.
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Obergefell v. Hodges: impact on same-sex marriage
Same-sex marriage became legal in Texas and across the United States in 2015 after the U.S. Supreme Court issued its decision in Obergefell v. Hodges. This landmark ruling held that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The decision requires all 50 states, the District of Columbia, and the Insular Areas under U.S. sovereignty to perform and recognize same-sex marriages on the same terms and conditions as opposite-sex marriages, with equal rights and responsibilities.
Prior to Obergefell, same-sex marriage had already been established by statute, court ruling, or voter initiative in 36 states, the District of Columbia, and Guam. However, Texas same-sex couples lacked vital relationship protections under state law, and thousands of protections available to opposite-sex couples remained off-limits. Planning was essential for same-sex couples to gain even a semblance of the protections available to heterosexual couples. Without such planning, same-sex couples could face dire consequences, such as losing their homes to relatives of a deceased partner or being cut off from contact with a long-term partner following a sudden illness due to interfering family members with legal priority.
The Obergefell ruling brought long-overdue relationship protections to same-sex couples in Texas and across the nation. It requires states to issue marriage licenses to same-sex couples and recognize such marriages performed in other jurisdictions. This means that Texas must recognize common-law marriages, including those between same-sex couples. Common-law marriages in Texas are legal marriages, and all states recognize legal marriages from other states. For a common-law marriage to be valid in Texas, the couple must agree to be married, represent themselves as married to others, and live together as a married couple in Texas.
In 2022, the federal Respect for Marriage Act created additional statutory protections for same-sex marriages. This law requires all states to recognize valid same-sex marriages performed in other states. However, it does not require states to issue marriage licenses to same-sex couples. While this has provided further protections for same-sex marriages, more than two dozen U.S. states have trigger laws that would limit marriage equality if the Supreme Court were to overturn Obergefell.
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Same-sex marriage: the application process
Same-sex marriage is legal in Texas following the U.S. Supreme Court's 2015 Obergefell v. Hodges ruling, which required all states to issue marriage licenses to same-sex couples. This ruling brought Texas same-sex couples long-overdue relationship protections, including thousands of protections available to other couples, such as homestead protections and Social Security survivor benefits.
The federal Respect for Marriage Act, signed into law by President Joe Biden in December 2022, further protects same-sex marriages. This law requires states to recognize valid same-sex marriages performed in other states. However, it does not require states to issue marriage licenses to same-sex couples.
The application process for marriage is the same for every couple in Texas. To enter into a common-law marriage, also known as an informal marriage, couples must satisfy the three-part test:
- Agree to be married
- Live together as a married couple in Texas
- Represent themselves as married to others in Texas
Once a couple enters into a common-law marriage in Texas, it becomes a legal marriage under Texas law. Texas allows parties in an informal marriage to hold the earliest date at which they satisfied all the requirements of an informal marriage as their legal marriage date. Texas law allows registration of an informal marriage by filing a Declaration of Informal Marriage with the county clerk in the county of residence.
It is important to note that same-sex marriage is not recognized by the three federally recognized Native American tribes in Texas: the Alabama-Coushatta Tribe of Texas, the Kickapoo Traditional Tribe of Texas (KTTT), and the Ysleta del Sur Pueblo.
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Parental rights: for same-sex couples
Same-sex marriage became legal in Texas in 2015 after the U.S. Supreme Court issued its decision in Obergefell v. Hodges. This ruling required all states to issue marriage licenses to same-sex couples and provide equal access to marriage. The federal Respect for Marriage Act of 2022 further protected same-sex marriages by requiring states to recognize valid marriages performed in other states. Texas is one of the few states that recognize common-law marriages, which become legal marriages with the same rights and privileges as any other marriage. Same-sex couples in Texas can enter into an informal or common-law marriage by agreeing to be married, cohabitating in Texas, and representing themselves as married to others.
Despite these legal protections for same-sex marriages, LGBTQ+ people in Texas may face additional challenges when establishing parental rights. Same-sex parents are more likely to be parenting adopted children, and the process of adoption can be complex. Even if both parents' names are on the child's birth certificate, it may not be sufficient to protect their legal rights. In cases of surrogacy or assisted reproduction, it is crucial to take legal steps to ensure that the donor or surrogate does not retain parental rights unless intended.
Establishing legal parenthood can be complicated, even for cisgender, opposite-sex couples. In Texas, the specific circumstances of the people involved determine who is a legal parent, including marital status, biological parentage, and how the child was conceived. For same-sex couples, a second-parent adoption may be necessary to protect the rights of the non-biological parent. This process can be facilitated with the help of an experienced lawyer, particularly one specializing in LGBTQ+ adoptions.
Furthermore, the presumption of parenthood in heterosexual relationships, where the child is presumed to be the biological child of the husband, does not automatically extend to same-sex couples. However, there is a growing trend in Appeals cases supporting the extension of this presumption to same-sex couples when they intended to have a child together, such as through IVF.
Overall, while same-sex marriage is legal in Texas, LGBTQ+ couples may still face unique challenges when establishing parental rights. These challenges can be navigated with proper legal guidance, and there is a growing trend towards recognizing the parental rights of same-sex couples in Texas.
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Divorce: the process for common-law marriages
Same-sex couples in Texas can enter into an informal marriage, also known as a common-law marriage. This type of marriage is a legal marriage without a ceremony or other formalities. Once a common-law marriage is legally established, it is the same as a marriage that was established through a wedding ceremony or license.
If a common-law couple decides to split up, they must file for divorce. The process for divorcing a common-law marriage is similar to that of a formal marriage. Under Texas law, all property acquired during a marriage (formal or common-law) is considered community property and will be divided equally between the spouses. This includes any debts accumulated during the marriage. If no common-law marriage is proven, there is no marital property or debts to divide, and each party will keep their own property and remain individually responsible for their debts.
It is important to note that Texas law presumes a common-law marriage never existed if court proceedings are not filed within two years of the separation. Therefore, it is crucial to seek a divorce promptly if separated from a common-law spouse.
To prove the existence of a common-law marriage, the following requirements must be met:
- Both parties must agree that they are married.
- The couple must live together as husband and wife in Texas.
- Both parties must "hold out" to others that they are married, such as introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple.
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Frequently asked questions
Yes, common-law marriage, also known as an informal marriage, is a valid and legal way for a couple to marry in Texas.
Yes, same-sex couples can enter into a common-law marriage in Texas. However, the Texas statute about informal marriages still uses the phrase "husband and wife".
Under the Texas Family Code, an informal or common-law marriage may be proved with evidence that: 1. the couple agreed to be married, 2. after the agreement, they cohabitated (lived) together in Texas as a married couple, and 3. represented themselves to others in Texas to be married.
Ending a common-law marriage in Texas is similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce. If court proceedings are not filed within two years of separation, Texas law presumes the marriage never existed unless proven otherwise.
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