Kara Sears
Texas is one of the few states that recognizes common-law marriages, which are legal marriages without a formal ceremony or registration. To prove a common-law marriage in Texas, couples must provide evidence of three elements: an agreement to be married, cohabitation in Texas, and representation as a married couple to the public. This can include testimony from the couple or their community, as well as documents such as tax returns, lease agreements, insurance policies, and social media posts. While signing a Declaration of Informal Marriage is the easiest way to prove a common-law marriage, couples can still prove their marriage in court if necessary.
Characteristics of Common Law Marriage in Texas
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is a legally valid form of marriage in Texas, with the same rights as a formal marriage |
| Eligibility | Both parties must be 18 or older, legally eligible for marriage, and not already married |
| Proof of agreement to be married | Testimony from either partner, friends, or family; conduct or other acts showing an agreement; signed insurance documents stating they are husband and wife; referring to each other as husband and wife in correspondence |
| Proof of cohabitation | Evidence and witness statements that the couple lived together in Texas with the agreement that they were spouses for some period of time; the cohabitation need not be continuous |
| Proof of holding out to others | Introducing each other as spouses to others; signing leases, tax returns, and insurance policies as spouses; filing joint tax returns; making joint purchases and loan applications; including partner on health insurance; listing partner as spouse when applying for public benefits |
| Declaration | Couples can sign a Declaration of Informal Marriage and file it with the clerk of court |
| Time limit for proof | 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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What You'll Learn
Prove cohabitation
To prove cohabitation for a common-law marriage in Texas, you must show that you and your partner lived together. This can be demonstrated through documents such as lease agreements, tax returns, and insurance policies. Testimony from either partner, friends, or family can also help prove cohabitation.
It is important to note that simply living together for a certain period of time does not establish a common-law marriage in Texas. The cohabitation must be accompanied by an agreement between both parties to be married and a representation of themselves as a married couple to the public.
If you and your partner separate and do not take legal action to prove your common-law marriage within two years, Texas law presumes that a common-law marriage never existed. Therefore, it is essential to take timely action if you need to prove your common-law marriage in Texas.
Additionally, in the state of Texas, you must have the capacity to enter into a marriage. This means that both parties must be at least 18, unrelated, and not currently married to someone else.
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Show agreement to be married
A common-law marriage, also known as an informal marriage, is a legal marriage without a ceremony or other formalities. It is a valid and legal way for a couple to marry in Texas.
To prove a common-law marriage, you must show that you and your partner agreed to be married. This agreement is a separate requirement that must be proven, although it may sometimes be inferred from evidence of the other two requirements (living together and holding out to others that you are a married couple).
There are several ways to prove that you and your partner agreed to be married:
- Testimony from either partner: One way to prove an agreement to be married is to have testimony from either partner stating that they agreed to be married. In Small v. McMaster, the girlfriend's testimony that they made an agreement to marry was enough to satisfy the first prong of a common-law marriage.
- Testimony from friends and family: Another way to prove an agreement to be married is to have testimony from friends or family members stating that the couple agreed to be married.
- Conduct or other acts: An agreement to be married can also be proven through conduct or other acts showing there was an agreement. For example, in a email to his child's teacher, the man in Small v. McMaster referred to his girlfriend as his wife.
- Direct or circumstantial evidence: According to an appeals court in Texas, an agreement to be married can be proven by direct or circumstantial evidence that the parties intended to have a permanent marital relationship and agreed to be spouses. For example, the woman in Small v. McMaster provided evidence that her boyfriend had said she was "his wife" and that he had fixed her broken wedding ring and gave it back to her to wear.
It's important to note that, in Texas, a common-law marriage is not established simply by living together for a certain period of time. Additionally, if a couple separates and stops living together for two years without initiating any legal proceedings to prove their marriage, it is assumed that they did not enter into an agreement to be married.
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Represent as married publicly
In Texas, common-law marriage, also known as an "informal marriage", is a valid and legal way for a couple to marry without a ceremony or other formalities. It is important to note that simply living together or being in a long-term relationship does not automatically qualify as a common-law marriage. To be recognised as a common-law marriage, certain requirements must be met.
One of the key requirements to prove a common-law marriage in Texas is to demonstrate that the couple openly represents themselves as married to others. This involves showing that they act as husband and wife to the public. Evidence of this may include introducing your partner as your spouse to friends, family, and the wider community. It is important to note that a single introduction as a spouse may not be sufficient on its own, but when coupled with other evidence, such as living together and acting as a married couple, it can help establish the representation of a married couple.
Official documents, such as leases, insurance policies, tax returns, and loan applications, can also be used as evidence to demonstrate that the couple represents themselves as married to others. For example, referring to each other as “husband” and “wife" or "spouse" on these documents can be strong proof of their public representation as a married couple. Social media posts, emails, letters, and other correspondence in which the couple refers to each other as spouses can also support their claim of a common-law marriage.
Additionally, actions and statements made by and between the couple can contribute to proving their public representation as a married couple. This includes testimony from either partner, friends, or family members stating their agreement to be married and their public representation as such. Witness statements and evidence of their cohabitation in Texas can further strengthen their claim.
It is important to note that the requirement to prove representation as a married couple is in addition to the other elements that must be satisfied to establish a common-law marriage in Texas. These include the agreement between the couple to be married and their cohabitation in Texas as husband and wife. Consulting with an experienced family attorney in Texas is advisable to ensure that all legal requirements are met and your rights are protected.
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Declare informal marriage
In Texas, a common-law or informal marriage is a legal marriage without a ceremony or other formalities. It is as legally valid as a formal marriage and carries the same rights and responsibilities.
To declare an informal marriage in Texas, a couple must meet the following requirements:
- They must agree to be married.
- They must live together in Texas as husband and wife.
- They must openly represent themselves as a married couple to others.
There are two ways to validate an informal marriage in Texas:
- File a Declaration of Informal Marriage: This involves completing a form and filing it with the clerk of the court in the county where the couple lives. The declaration must include an oath by the couple, attesting that they have met the legal requirements for an informal marriage. The cost to file a declaration is between $30 and $82.
- Prove the existence of an informal marriage in court: If a couple chooses not to file a declaration, they may still need to prove their marriage in court if there is a dispute, for example, if they separate and need to divide assets. This can be more complex and may require testimony from the couple, friends, or family, as well as other evidence such as lease agreements, tax returns, insurance policies, etc.
It is important to note that if a couple separates and does not initiate legal proceedings to prove their marriage within two years, Texas law presumes the common-law marriage never existed unless proven otherwise.
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Provide supporting documents
To prove a common-law marriage in Texas, you must provide supporting documents as evidence. This is because common-law marriage is a legal marriage without a formal ceremony or registration.
Firstly, you must prove that you and your partner agreed to be married. Testimonies from either of the partners, friends, or family members can help prove this. Additionally, you can provide correspondence, such as emails, letters, and social media posts, where you refer to each other as "husband" and "wife" or "spouse".
Secondly, you must demonstrate that you lived together in Texas as spouses. There is no requirement to live together for a specific period, but you must provide evidence and witness statements supporting this claim.
Thirdly, you must show that you and your partner openly represented yourselves as a married couple to others. This can be proven by providing various documents, such as:
- Lease agreements or other joint documents signed as spouses
- Joint purchases or loan applications
- Tax returns filed jointly as spouses
- Insurance policies listing your partner as a spouse
- Official documents, such as health insurance documents, where you refer to your partner as a spouse
- Including your partner as a beneficiary on a life insurance policy
Additionally, having children together and including your partner on your health insurance can also support your claim.
If you have signed a Declaration of Informal Marriage, you can easily prove your common-law marriage by obtaining a certified copy of this document from the county clerk's office. This is the easiest way to prove a common-law marriage in Texas.
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Frequently asked questions
You can prove a common-law marriage in Texas by signing a Declaration of Informal Marriage. If you did not sign one, you can still prove a common-law marriage by demonstrating that you and your partner:
- Agreed to be married
- Lived together in Texas as husband and wife
- Openly represented yourselves as married to others
Documents such as lease agreements, tax returns, insurance policies, and loan applications may be requested to prove a common-law marriage.
A common-law spouse is entitled to inherit just like a formal spouse. However, establishing a common-law marriage after the death of your spouse can be complicated, so it is best to consult an attorney.
Common-law marriages that end in separation must go through a divorce. If court proceedings are not filed within two years of the separation, Texas law presumes the marriage never existed unless proven otherwise.
No, there is no requirement to live together for a specific period. However, you must demonstrate through evidence and witness statements that you lived together in Texas with the agreement that you were spouses.
