Cecily Zamora
Texas is one of the few states that still recognizes common-law marriages, also known as informal marriages. To establish a common-law marriage in Texas, couples must meet a three-prong test: they must live together, agree that they are married, and hold themselves out to others as a married couple. While it is not required, couples can register their common-law marriage by filing a declaration with the county clerk. If a couple separates without taking any action to end the marriage, Texas law presumes that the marriage never existed if neither party takes action to prove the marriage within two years of separation.
| Characteristics | Values |
|---|---|
| Legal Status | Common-law marriages are legally valid in Texas, and are considered equal to formal marriages |
| Requirements | Couples must live together, agree that they are married, and hold themselves out to others as married |
| Registration | Couples can register their common-law marriage by filing a declaration with the county clerk, but it is not required |
| Proof | Documents such as lease agreements, tax returns, and insurance policies may be used to prove a common-law marriage |
| Divorce | Common-law marriages must go through the same legal divorce process as formal marriages, and property and debts are divided in the same way |
| Same-Sex Marriage | Texas recognizes same-sex common-law marriages |
| Time Requirement | There is no minimum time requirement for common-law marriage |
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What You'll Learn
Requirements for common-law marriage in Texas
In Texas, a common-law marriage, also known as an "informal marriage", is a valid and legal way for a couple to marry without the formalities of a ceremony or a marriage license. However, there are specific requirements that must be met for a common-law marriage to be recognised.
Firstly, both parties must be at least 18 years old, unrelated, and not currently married to someone else. Secondly, the couple must live together in Texas and agree that they are married. This agreement must be a present, immediate, and permanent intention to have a marital relationship, and cannot be a promise to marry in the future. Thirdly, the couple must ''hold out' to others that they are married. This means they must represent themselves as a married couple to the wider community. Actions and conduct that can fulfil this requirement include introducing each other as spouses, wearing rings on ring fingers, signing documents as a married couple, filing joint tax returns, and adding their partner to a "family" membership.
Couples can choose to register their common-law marriage by filing a Declaration of Informal Marriage with their county clerk's office. This is not a requirement, but if a couple chooses not to declare their marriage, they may need to provide other documents such as lease agreements, tax returns, and insurance policies to prove their marriage. If there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to prove the marriage.
It is important to note that Texas law places a two-year statute of limitations on proceedings to prove a common-law marriage. If two years pass after a couple separates and neither party has taken any action to prove the marriage, the state will presume that the marriage never existed.
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How to prove a common-law marriage
In Texas, a common-law marriage is a legal marriage without a formal ceremony or other formalities. It is as legally valid as a formal marriage. To enter into a common-law marriage, couples must meet the following three requirements:
- Live together
- Agree that they are married
- Hold themselves out to others as a married couple
To prove a common-law marriage, couples must show evidence of the above three requirements. For example, introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple could separately qualify as "holding out" to others that they are married. Filing joint tax returns, adding someone to the “family” country club membership, and even the address on Christmas card envelopes can also be taken as evidence.
Couples can also register their common-law marriage by filing a declaration with their county clerk. For couples that choose not to declare their common-law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage. If no declaration was filed and there is a dispute 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 types of proceedings.
It is important to note that proving a common-law marriage does not depend on how long a couple has been living together or whether they have children together. It also does not depend on which spouse made purchases or whose name is on the title. Once a common-law marriage is proven, community property, debts, and inheritance are divided the same as if the parties were formally married.
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Common misconceptions about common-law marriage
There are a few misconceptions about common-law marriage in Texas. Firstly, it is not true that a couple is considered married under common law simply by living together for a certain period of time. In fact, there is no requirement for how long a couple must live together to be considered common-law married. What matters more is that they maintain a household together and do things associated with being a married couple.
Secondly, common-law marriage is not a loophole to avoid a formal divorce process. Even when a couple satisfies all the requirements of a common-law marriage, they may still not be permitted to file for divorce. If a common-law marriage is proven, the division of property and debts will be the same as if the parties were formally married.
Thirdly, a common-law marriage does not automatically end if the couple physically separates. If no action is taken to end the marriage (such as filing for divorce), the law may presume that the couple never intended to be married in the first place. This makes it harder to prove a common-law marriage existed if more than two years pass after separation without taking any legal action.
Finally, an engagement or an agreement to get married in the future is not sufficient to establish a common-law marriage. There must be evidence of a present, immediate, and permanent intention to have a marital relationship.
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Common-law marriage and divorce
Texas recognizes common-law marriages, also known as informal marriages, which are legal marriages without a ceremony or other formalities. To establish a common-law marriage in Texas, couples must meet three requirements: they must live together, agree that they are married, and hold themselves out to others as a married couple. These requirements can be fulfilled by completing a declaration of marriage form with the clerk of court or by proving these elements in court.
If a couple decides to end their common-law marriage, they 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 considered community property and are subject to division upon divorce. This includes property acquired by either spouse, regardless of who made the purchase or whose name is on the title. Debts accumulated during the marriage are also divided between the spouses.
It is important to note that there is no such thing as a "common-law divorce" in Texas. Once a couple's common-law marriage is legally recognized, they must obtain a regular divorce. If a couple separates and neither party takes action to prove the marriage or file for divorce within two years, the state will presume that the marriage never existed. Therefore, it is crucial to seek a divorce promptly if separated from a common-law spouse.
Proving a common-law marriage can have significant implications for property division, debt allocation, inheritance rights, and other marital benefits. It is recommended to consult with an attorney or legal practitioner for guidance on specific situations involving common-law marriage and divorce in Texas.
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Common-law marriage and inheritance
In Texas, a common-law marriage is a legal marriage without a formal ceremony or other formalities. It is as legally valid as a formal marriage. To establish a common-law marriage in Texas, a couple must meet three requirements: they must agree to be married, live together as husband and wife, and hold themselves out to others as married.
If a common-law marriage is contested, the person claiming its existence may need to provide evidence to support their claim. This evidence can include a signed declaration of informal marriage, joint tax returns, insurance policies listing each other as spouses, employer records, and correspondence addressed to the couple using a shared last name.
In Texas, proving a common-law marriage can be critical when it comes to inheritance. If a common-law spouse dies, their partner must legally establish that they were in a common-law marriage to inherit from their estate. A common-law spouse can inherit from a decedent's estate whether the decedent died with or without a valid will. They are afforded the same rights and privileges as those in a formal marriage, including community property, homestead rights, and exempt property.
Under Texas's intestate succession laws, if someone dies without a will, their assets go to the closest relative, typically the spouse. However, if there are other family members or children of the deceased involved, things can become complicated, as the family members may not recognize the common-law marriage. Therefore, it is essential to prove the existence of a common-law marriage in Texas to ensure inheritance rights.
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Frequently asked questions
The three requirements for a common-law marriage in Texas are that both parties must live together, agree that they are married, and hold themselves out to others as a married couple. Both parties must also be at least 18, unrelated, and not currently married to someone else.
Couples can register their common-law marriage by filing a Declaration of Informal Marriage with their county clerk's office. Documents such as lease agreements, tax returns, and insurance policies may also be requested to prove a common-law marriage. If no declaration was filed, it may be necessary to go to court to prove the marriage.
A common-law marriage is a legal marriage without a ceremony or other formalities. As such, it provides legal rights similar to those of traditionally married couples. This includes the ability to inherit assets upon one partner's death and to divide assets in the event of a separation.
Common-law marriages do not have a "common-law divorce". Once the state legally recognises your informal marriage, you need to get a regular divorce just like people who had a ceremonial marriage. This involves going through the same legal channels as a traditionally married couple.
Yes, same-sex common-law marriages are recognised in Texas following the US Supreme Court's 2014 decision in Obergefell v. Hodges.
