Gavin Howe
Texas law does recognize common-law marriages, also known as informal marriages. To establish a common-law marriage, couples must meet certain requirements, including cohabitation, agreeing that they are married, and holding themselves out to others as a married couple. There are two ways to prove a common-law marriage in Texas: signing a declaration of informal marriage with the county clerk or proving the three elements outlined in Section 2.401 of the Texas Family Code. Same-sex couples can also enter into common-law marriages in Texas, and they enjoy the same legal rights as traditionally married couples, including the need to file for divorce if they separate.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | Yes, Texas law recognizes common-law marriages |
| Common-law marriage requirements | Couples must cohabit in Texas as spouses, agree that they are married, and hold themselves out to others as married. Couples must also comply with other Texas marriage laws, including age, relationship, and residency requirements. |
| Proof of common-law marriage | Couples can register their common-law marriage by filing a "Declaration of Informal Marriage" with their county clerk's office. Documents like tax returns, lease agreements, insurance policies, etc. may also be used to prove a common-law marriage. |
| Divorce from a common-law marriage | Couples who want to end a common-law marriage must file for divorce. If two years pass after a separation and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed. |
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What You'll Learn
Texas law recognises common-law marriages
Texas law does recognise common-law marriages. In Texas statutes, such marriages are referred to as "marriages without formalities" or "informal marriages".
To establish a common-law marriage in Texas, couples must meet three conditions, outlined in Section 2.401 of the Texas Family Code. Firstly, both parties must be at least 18 years old. Secondly, neither party can be married to anyone else. Thirdly, the parties may not be related to one another.
In addition to these requirements, couples must also comply with other Texas marriage laws. For example, at least one of the two parties must reside in Texas for at least six months to legally marry.
Couples can register their common-law marriage by filing a Declaration of Informal Marriage with their county clerk's office. They can also choose not to declare their common-law marriage, in which case documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
If a common-law marriage is proven, it holds the same legal status as a ceremonial marriage. This means that couples who want to end a common-law marriage must file for divorce. If a couple separates and neither party has filed anything to prove the marriage within two years, the state presumes that the marriage never existed.
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Requirements for common-law marriage
Texas law recognizes common-law marriages, also known as "marriages without formalities" or "informal marriages." To establish a common-law marriage in Texas, couples must meet certain requirements and prove specific elements. Here are the key requirements for a common-law marriage in Texas:
Cohabitation and Agreement to be Married
Firstly, the couple must live together and agree that they are married. There is no requirement for a specific duration of cohabitation; it could be seven months or seven years. However, simply living together for an extended period does not automatically establish a common-law marriage. The couple must also represent themselves as married to others, often referred to as "holding out to others as married." This can be established through reputation, where their community, including friends and family, believes them to be married, or through explicit declarations.
Declaration of Informal Marriage
One way to establish a common-law marriage is by signing a "Declaration of Informal Marriage" with the county clerk's office. This declaration serves as valid proof of marriage, and once signed, the couple is considered married for all legal purposes. Sample forms and instructions for this procedure are available through TexasLawHelp.org and the county clerk's office.
Proving the Three Elements
If a couple chooses not to declare their common-law marriage, they must prove three elements outlined in Section 2.401 of the Texas Family Code. While a written or verbal agreement in front of witnesses is ideal, Texas law also recognizes tacit or inferred agreements. For example, using your partner's last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases can be considered evidence of a common-law marriage.
Same-Sex Common-Law Marriages
Same-sex couples can enter into common-law marriages in Texas due to the U.S. Supreme Court's decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide.
Dissolution of Common-Law Marriage
It is important to note that ending a common-law marriage requires filing for divorce, similar to a formal marriage. Additionally, if two years pass after a common-law marriage couple separates, and neither party takes legal action to prove the marriage, Texas law presumes that the marriage never existed.
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Proving a common-law marriage
Texas law recognizes common-law marriages, also known as "marriages without formalities" or "informal marriages". To prove a common-law marriage, couples must fulfil the following requirements:
Cohabitation
The couple must live together in Texas as spouses, maintaining a household and doing things associated with married couples. There is no requirement for how long the couple must live together.
Agreement to be Married
Both parties must agree that they are married. This agreement can be written or verbalized in front of witnesses, but it does not need to be. The State recognizes tacit or inferred agreements, such as using a partner's last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases.
Holding Out to Others as Married
The couple must hold themselves out to the public as married. This can be demonstrated through the testimony of friends, family, and others who know the couple, or through declarations made by the couple themselves.
Registration
Couples can register their common-law marriage by filing a Declaration of Informal Marriage with their county clerk's office. This is not required, but it can be helpful in proving the marriage.
Supporting Documents
Documents such as lease agreements, tax returns, insurance policies, and other joint purchases may be requested to prove the marriage.
Court Proceedings
If there is no declaration and a dispute arises as to whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. Texas law places a two-year statute of limitations on these proceedings. If two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage or taken action to end it, the state presumes that the marriage never existed.
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Common-law marriage and divorce
Texas law recognizes common-law marriages, also known as "marriages without formalities" or "informal marriages". To establish a common-law marriage in Texas, couples must meet certain requirements and comply with other Texas marriage laws. These include:
- Both parties must be at least 18 years old.
- Neither party can be married to anyone else.
- The parties may not be related to one another.
- Both partners must be eligible for marriage.
- Both parties must agree to be married and hold themselves out to others as a married couple. This can be established through reputation, i.e., the belief by the couple's community that they are married, or through explicit declarations.
- The couple must cohabit in Texas as spouses and maintain a household together, doing things associated with being a married couple.
There are two ways to establish a common-law marriage in Texas. The first is for the couple to sign a "declaration of informal marriage" with the county clerk's office. The second is to prove the three elements outlined in Section 2.401 of the Texas Family Code. These include:
- An agreement between the couple to be married, which can be written or verbalized in front of witnesses. The state also recognizes tacit or inferred agreements, such as using your partner's last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases.
- The couple must live together in Texas, meeting the same residency requirements as traditionally married couples.
- The couple must represent themselves to others as married.
If a common-law marriage is established, it holds the same legal status as a ceremonial marriage. This means that in the event of a divorce, couples must go through the same legal channels as a traditionally married couple. Texas is a community property state, so any assets accumulated during the marriage are subject to division, regardless of which spouse made the purchase or whose name is on the title. Debts accumulated during the marriage are also divided between the spouses.
If a couple separates and neither party takes action to end the marriage within two years, the state presumes that the marriage never existed. This makes it harder to prove a common-law marriage existed.
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Common misconceptions about common-law marriage
Texas is one of the few states that recognizes common-law marriage. However, there are several misconceptions about what constitutes a common-law marriage. Here are some of the most common misconceptions:
- Time Length Myth: One common misconception is that a couple must live together for a specific period of time before they can be considered common-law spouses. This is not true, as there is no set time requirement for common-law marriage in Texas. The important factor is that the couple agrees to be married and holds themselves out to others as husband and wife, regardless of the length of time they have lived together.
- Cohabitation Myth: Simply living together or cohabitating does not automatically create a common-law marriage. There must also be an agreement between both parties to be married and they must present themselves publicly as a married couple. This can be established through testimony from friends and family or through declarations such as using the same last name or filing joint tax returns.
- Automatic Recognition Myth: While common-law marriages are recognized in Texas, they are not automatically recognized in all states. The "full faith and credit" rule of the U.S. Constitution compels states to recognize marriages made valid under another state's laws. However, since common-law marriage is not recognized in most states, it can be complicated to have a common-law marriage recognized outside of Texas.
- Equal Legal Rights Myth: While a common-law marriage is considered legally valid in Texas, it can be harder to prove its existence compared to a traditional marriage. This may impact the rights of the spouses, especially in the event of a divorce or the death of one spouse. It is recommended that couples in a common-law marriage take extra steps to protect their rights, such as writing and signing a simple statement of their intention to be married.
- Parental Rights Myth: Parental rights are not dependent on the status of a couple's relationship but rather on the individual's status as a parent. In other states like Washington, even in a committed intimate relationship, parental rights and responsibilities are not affected by common-law marriage.
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Frequently asked questions
Yes, Texas law recognizes common-law marriages, also known as "marriages without formalities" or "informal marriages".
There are two ways to establish a common-law marriage in Texas. The first is for the couple to sign a "declaration of informal marriage" with the county clerk's office. The second way is to prove three elements outlined in Section 2.401 of the Texas Family Code. These include cohabitation, agreeing that you are married, and holding out to others that you are a married couple.
Under Texas law, all property and debts acquired during a common-law marriage are considered community property and will be divided in the same way as a formal marriage. If a common-law marriage is not proven, there is no marital property or debts to divide.
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