Cecily Zamora
In Texas, common-law marriage is recognized as a legal union between two people without a marriage license or ceremony. While the Texas Legislature has not amended the statutory language, same-sex common-law marriages are now recognized in the state. To establish a common-law marriage with an inmate in a Texas prison, one must file Form H1057 with the county clerk in their county of residence. The county clerk will then provide a certificate of informal marriage, which can be presented to the prison. Additionally, both the inmate and their spouse can submit an affidavit to the warden, with the inmate filing an unsworn affidavit and the spouse's affidavit being certified by a notary. It is important to note that a prisoner has no absolute right to be present in a civil action, and any request for a bench warrant must be justified.
| Characteristics | Values |
|---|---|
| Type of marriage | Common-law or informal |
| Who can submit the affidavit | Both the inmate and their spouse |
| Affidavit type for inmate | Unsworn affidavit |
| Affidavit type for spouse | Affidavit certified by a notary |
| Form to be filed | Form H1057 |
| Where to file the form | County clerk in the county of residence |
| Certificate received from | County clerk |
| Certificate submitted to | Prison |
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What You'll Learn
Common law marriage in Texas is also called an informal marriage
In Texas, common-law marriage is also called an informal marriage. This is a legal marriage without a formal ceremony or other formalities. A couple in a common-law marriage or an informal marriage has the same rights as a couple in a formal marriage.
To enter into a common-law marriage in Texas, a couple must meet certain requirements. These include living together, agreeing that they are married, and holding themselves out to others as a married couple. While it is not a requirement, couples can register their common-law marriage by filing a declaration with the 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.
Proving a common-law marriage can be important when a relationship is ending (divorce) and in determining inheritance rights. Under Texas law, all property acquired during a marriage (formal or common law) is community property. If a common-law marriage is proven, community property is divided in the same way as if the parties were formally married. Debts accumulated during a common-law marriage are also divided between the spouses. If no common-law marriage is proven, there is no marital property or debts to divide.
To prove a common-law marriage, it may be necessary to go to court. If two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, Texas law presumes that the marriage never existed.
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File a Form H1057 with the county clerk
To file a Form H1057 with the county clerk, you must first obtain a copy of the form, which can be found online as a fillable PDF. Form H1057 is a Declaration of Informal Marriage form, also known as a common-law marriage form, and is used to declare a legally valid marriage without a formal ceremony or marriage license.
Once you have accessed the form, you will need to provide personal information for both spouses, including full names, dates of birth, social security numbers, and addresses. The form will also require a declaration statement, affirming the marriage based on mutual agreement and cohabitation. This statement serves as evidence of the couple's marital status and their intention to be recognised as a married couple.
It is important to note that, in Texas, a common-law marriage may be proved by evidence that the couple agreed to be married, lived together as husband and wife, and represented themselves as married to others. Therefore, additional documentation supporting these claims may be required when filing Form H1057. This could include proof of identity and age, as well as money to pay the filing fee, similar to the requirements when obtaining a marriage license.
After completing the form, it can be sent via email, link, or fax, or printed out and filed in person at the county clerk's office. It is recommended to check with your local county clerk's office for any specific instructions or requirements they may have for filing Form H1057.
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Get a certificate of informal marriage
In Texas, common-law marriages are known as informal marriages. They are a valid and legal way for a couple to marry. To obtain a certificate of informal marriage in Texas, you must file a Declaration of Informal Marriage with the county clerk's office. Both parties must be 18 years old to get married without parental consent.
The Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation. Both the inmate and their common-law spouse can submit the affidavit to the warden. The inmate can file an unsworn affidavit, while the spouse must have their affidavit certified by a notary.
To establish an informal marriage in Texas, the following requirements must be met:
- Each person in the relationship must have the legal right to marry.
- Each person must be 18 or older, but legally emancipated minors may marry in Texas.
- The couple must intend to marry each other at some point.
- The couple must present themselves as being married to friends, family, and others.
- Each person involved in the relationship must be of sound mind.
- Neither party must have coerced the other into the marriage arrangement.
While it is not a requirement, couples can register their common-law marriage by filing a declaration with the county clerk. This declaration is valid proof of marriage, and the couple is considered married for all legal purposes. 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 there is a dispute about the existence of a common-law marriage, it may be necessary to go to court to prove the marriage.
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Submit an affidavit to the warden
To claim common-law marriage to an inmate in a Texas prison, both the inmate and their common-law spouse must submit an affidavit to the warden. The inmate can file an unsworn affidavit, while the spouse must have their affidavit certified by a notary.
To do this, you will need to fill out Form H1057 with the county clerk in the county where you live. The county clerk will then provide you with a certificate of informal marriage, which you can present to the prison.
The specific process for submitting the affidavit to the warden may vary depending on the prison and its policies. It is recommended that you contact the prisoner's unit for more information on filing this type of affidavit and any specific requirements or procedures that may need to be followed.
It is important to note that there is no sample affidavit available online from the Texas Department of Criminal Justice (TDCJ). Therefore, it is advisable to seek guidance from the prison or consult with legal professionals to ensure that the affidavit is properly completed and meets any applicable requirements or standards.
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Same-sex common-law marriages are recognised in Texas
Texas law allows same-sex couples to enter into an informal marriage, also known as a common-law marriage. To prove a common-law marriage, there is a three-part test under the Texas Family Code:
- The couple 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
Once a common-law marriage is legally established, it is the same as a marriage that was established through a wedding ceremony or license. This means that the couple will have all of the same rights and privileges while married and during a divorce.
To register an informal marriage, couples must file a Declaration of Informal Marriage with the county clerk in the county of their residence. They can then be provided with a certificate of informal marriage.
The federal Respect for Marriage Act, created in 2022, requires all states to recognize valid same-sex marriages performed in another state. This means that even if a couple moves to a state that does not recognize common-law marriage, their marriage will still be recognized.
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Frequently asked questions
A common-law marriage in Texas is also called an informal marriage.
To claim common-law marriage in Texas, you need to file a Form H1057 with the county clerk in the county where you live. Then, they can give you a certificate of informal marriage that you can provide to the prison.
Both the inmate and their common-law spouse can submit an affidavit to the warden. The inmate can file an unsworn affidavit, while the spouse must have their affidavit certified by a notary.
Yes, same-sex common-law marriages are recognized in Texas.
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