Keith Mack
Texas is one of the few states that recognizes common-law marriages, but it takes more than just living together for a certain amount of time to be considered married. There is no time limit on the amount of time a couple lives together to be considered common-law married in Texas. However, there are specific requirements that must be met, and the couple must hold themselves out to others as husband and wife. If a common-law marriage is established, the spouses hold the same legal rights as a couple with a marriage license.
| Characteristics | Values |
|---|---|
| Number of years to be common-law married | There is no requirement for a couple to live together for a specific amount of time to be considered common-law married in Texas. |
| Proving a common-law marriage | A common-law marriage can be evidenced by the couple living together, telling others they were married, using a partner's last name, filing joint tax returns, signing leases or other documents as spouses, making joint purchases, including a partner on health insurance, making a partner the beneficiary of a life insurance policy, making joint loan applications or agreements, applying for public benefits and listing a partner as a spouse, and having children together. |
| Minimum age | Both parties must be at least 18 years old. |
| Previous marriages | Both parties must not be currently married to someone else. |
| Blood relations | Both parties must not be related by blood or adoption. |
| Soundness of mind | Both parties must be of sound mind. |
| Legal divorce | A legal divorce is required to dissolve a common-law marriage. |
| Property rights | A common-law marriage entitles spouses to the same rights as a formal marriage, including property rights. |
| Inheritance rights | A common-law spouse has inheritance rights. |
| Statute of limitations | Texas law places a two-year statute of limitations on court proceedings to prove a common-law marriage. |
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What You'll Learn
No minimum cohabitation period
Texas is one of the few states that recognizes common-law marriage. However, there are certain requirements that must be met for a common-law marriage to be valid.
Firstly, both parties must be at least 18 years old, of sound mind, and not currently married to someone else or related by blood or adoption.
Secondly, the couple must cohabit in Texas as spouses. There is no minimum period for cohabitation, contrary to popular belief. The couple must simply maintain a household together and do things associated with being a married couple.
Thirdly, the couple must hold themselves out to others as husband and wife. This can be achieved through reputation and declaration. Reputation refers to the belief by the couple's community, including friends and family, that they are married. Declaration refers to the couple's own statements that they are married. Evidence of this can include introducing each other as spouses, wearing rings on ring fingers, signing documents as a married couple, filing joint tax returns, and including each other on insurance policies.
If a common-law marriage is established, either through a declaration of informal marriage or by proving the three elements (cohabitation, agreement to be married, and holding out to others as married), then the spouses hold the same legal rights as a couple with a marriage license. This includes the right to inherit from each other in the absence of a will.
It is important to note that if a common-law marriage cannot be proven, there are no marital property or debts to divide, and each party will keep their own personal property and remain individually responsible for their debts.
Additionally, if a couple separates, they must take action within two years to prove the existence of a common-law marriage. After this period, Texas law presumes that the marriage never existed unless proven otherwise.
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Proving a common-law marriage
In Texas, common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry. However, proving a common-law marriage can be complex and may require court proceedings. Here are the key factors to consider when attempting to prove a common-law marriage in Texas:
Requirements for Common-Law Marriage:
Firstly, it's important to understand the requirements for establishing a common-law marriage in Texas. Both parties must be at least 18 years old, unrelated, and not currently married to anyone else. Additionally, there must be evidence of a present, immediate, and permanent intention to have a marital relationship. This means simply agreeing to get married in the future is insufficient. The couple must live together and hold themselves out to others as a married couple. This can include introducing each other as spouses, wearing rings on ring fingers, signing documents as a married couple, filing joint tax returns, and more.
Documentation:
Documents such as lease agreements, tax returns, insurance policies, loan applications, and other joint financial records can be crucial in proving a common-law marriage. These documents can demonstrate that a couple represented themselves as married to various institutions and organizations.
Court Proceedings:
If there is no formal declaration of a common-law marriage and a dispute arises, it may be necessary to go to court to prove the marriage. Texas law imposes a two-year statute of limitations on these proceedings. Therefore, it is essential to act promptly to strengthen your case and avoid potential legal complications.
Property and Inheritance:
Same-Sex Marriages:
It's important to note that since the legalization of same-sex marriage, same-sex couples can also enter into common-law marriages in Texas and have the same rights and considerations as opposite-sex couples.
In summary, proving a common-law marriage in Texas requires evidence of an agreement to be married, cohabitation, and holding out to others as a married couple. Documentation and, in some cases, court proceedings are crucial in establishing these elements. Seeking legal advice from an attorney or a family law specialist is recommended due to the complex nature of these cases.
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Divorce and common-law marriage
In Texas, common-law marriage, also known as marriage without formalities or an informal marriage, is a valid and legal way for a couple to marry. However, there is no such thing as a "common-law divorce". The process of ending a common-law marriage is similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce.
Requirements for Common-Law Marriage
To prove the existence of a common-law marriage in Texas, both parties must:
- Agree that they are married
- Live together as husband and wife
- "Hold out" to others that they are married
The "hold out" requirement means that parties must represent to others that they are married. This can be done through spoken words or actions and conduct. Examples include introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, adding a spouse to a "family" country club membership, and more.
It's important to note that there is no durational requirement for a common-law marriage. Simply living together for a certain period of time does not create a common-law marriage. All three conditions must exist simultaneously, and there must be a present, immediate, and permanent intention to have a marital relationship.
Property and Debt Division in a Common-Law Divorce
Under Texas law, if a common-law marriage is proven, the division of property and debts is handled in the same way as in a formal marriage. All property acquired during the marriage is considered community property, regardless of which spouse made the purchase or whose name is on the title. Similarly, debts accumulated during the marriage are divided equally between the spouses.
On the other hand, if a common-law marriage is not proven, there is no marital property or debts to divide. Each party will keep their personal property and remain individually responsible for their debts.
Statute of Limitations for Proving a Common-Law Marriage
Texas law places a two-year statute of limitations on court proceedings to prove the existence of a common-law marriage after separation. If court proceedings are not filed within two years of separation, there is a rebuttable presumption that no marriage existed. Therefore, it is crucial to take prompt action if seeking to prove a common-law marriage after separation.
Common-Law Marriage Between Same-Sex Couples
Since the United States Supreme Court's 2015 decision in Obergefell v. Hodges, same-sex couples can enter into a common-law marriage in Texas. The same requirements and considerations for common-law marriage apply to both opposite-sex and same-sex couples.
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Common-law marriage misconceptions
In Texas, a common-law marriage is a valid and legal way for a couple to marry without a formal ceremony. However, there are several misconceptions about this type of marriage. Here are some key points to address these misconceptions:
Misconception: Common-Law Marriage is Only Valid if the Couple Lives Together for a Certain Period
This is not accurate. While co-habitation is a requirement, there is no specific time period mandated by Texas law. Simply living together does not constitute a common-law marriage. The couple must also meet the other requirements, such as agreeing that they are married and holding themselves out as a married couple to others.
Misconception: Engaged Couples Can be Considered Common-Law Married
This is not the case. An agreement to get married in the future does not establish a common-law marriage. There must be evidence of a present, immediate, and permanent intention to have a marital relationship.
Misconception: Common-Law Marriage is a Loophole to Avoid a Formal Divorce
This is a misconception. Common-law marriages are legally valid, and if a couple separates, they may still need to go through a formal divorce process. However, it is important to note that Texas law places a two-year statute of limitations on proceedings to prove a common-law marriage after separation.
Misconception: Common-Law Marriage is Only Valid if a Declaration is Filed
While filing a Declaration of Informal Marriage with the county clerk provides valid proof of marriage, it is not the only way to establish a common-law marriage. If no declaration was filed, other documents and evidence, such as lease agreements, tax returns, and insurance policies, may be used to prove the marriage in court.
Misconception: Common-Law Marriage is Not Recognized for Same-Sex Couples
Since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, same-sex couples can enter into common-law marriages in Texas. The same requirements and considerations apply, and these marriages are legally recognized.
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Same-sex common-law marriage
In Texas, same-sex couples can enter into a common-law marriage, also known as an informal marriage. This has been legally recognised since the Obergefell v. Hodges ruling in 2015, which legalised same-sex marriage across the United States. The federal Respect for Marriage Act, passed in 2022, further solidified this by mandating that all states recognise valid same-sex marriages performed in other states.
To prove a common-law marriage in Texas, a couple must satisfy a three-part test:
- They agreed to be married
- After the agreement, they cohabitated (lived) together in Texas as a married couple
- They represented themselves to others in Texas as a married couple
Evidence of this might include introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, and so on.
It is important to note that there is a two-year statute of limitations on court proceedings to prove a common-law marriage in Texas. If no action is taken within two years of separation, it becomes harder to prove that a common-law marriage existed.
Once a common-law marriage is legally established, it is the same as a marriage established through a wedding, ceremony, or license. This means that if the relationship ends, the couple will have to go through the same divorce process as any other married couple, and property and debts will be divided in the same way.
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Frequently asked questions
There is no time limit on the amount of time a couple needs to live together to be considered common-law married in Texas. The law requires that a couple cohabitate for two years, but this is not a requirement for being considered common-law married.
Both parties must be at least 18, not married to anyone else, and not related by blood or adoption. The couple must also cohabitate in Texas and hold themselves out to others as husband and wife. This can be done through reputation (the belief by the couple's community that they are married) or declaration (signing a "declaration of informal marriage" with the county clerk's office).
If you separate from your common-law spouse in Texas, you may need to seek a legal divorce, especially if there are children, property, or assets involved. A family court will divide marital property and decide issues such as child custody and visitation. It is important to seek legal advice as soon as possible to protect your legal interests.
Proving a common-law marriage in Texas can depend on the factual circumstances of each case. Evidence that can support a claim of common-law marriage includes living together, telling others that you were married, using your partner's last name, filing joint tax returns, signing leases or other documents as spouses, making joint purchases, and having children together.
A common-law marriage in Texas is recognized as a legally valid marriage, even without a marriage ceremony or license. As such, common-law spouses hold all the same legal rights as a couple with a marriage license, including inheritance rights.
