Anaya Nolan
Texas recognizes common-law marriages, also known as marriages without formalities or informal marriages. To establish a common-law marriage in Texas, couples must meet three requirements: they must agree that they are married, live together, and hold out to others that they are a married couple. While there is no duration requirement for common-law marriages in Texas, if two years pass after separation and neither party has filed for divorce, the state presumes that the marriage never existed. Therefore, if one wishes to prove the existence of a common-law marriage after separating from their spouse, it is essential to file for divorce within two years. This is because, in Texas, common-law marriages are legally equivalent to formal marriages, and thus, the same divorce procedures apply.
Is divorce required for common-law marriage in Texas?
| Characteristics | Values |
|---|---|
| Is divorce required? | Yes |
| What if no common law marriage is proved? | No marital property or debts to divide |
| What if a common-law spouse remarries without a divorce? | Guilty of bigamy |
| What if a couple separates? | If separated for more than two years and no action is taken to end the marriage, the law presumes that the couple never intended to be married |
| Is there a "common-law divorce"? | No, once the state legally recognizes your informal marriage, you need to get a regular divorce |
| What if one party claims a common-law marriage never existed? | The burden is on the other spouse to prove a common-law marriage existed |
| Statute of limitations | If the couple goes their separate ways, a party wishing to prove that the relationship was a common-law marriage should file a divorce case within two years alleging that a marriage existed |
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What You'll Learn
Common-law marriage requirements in Texas
In Texas, a common-law marriage is a valid and legal way for a couple to marry. It is also known as a "marriage without formalities" or an "informal marriage". To establish a common-law marriage in Texas, three requirements must be met simultaneously:
- Both parties must agree that they are married.
- Both parties must live together as husband and wife.
- Both parties must "hold out" to others that they are married. This means actively representing to others that they are married. Actions and conduct by each person are examined, such as introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple.
In addition to the above, couples must also comply with other Texas marriage laws, including: both parties must be at least 18 years old, neither party can be married to anyone else, and the parties must not be related to one another.
If a couple decides to end their common-law marriage in Texas, they must file for a legal divorce, just like in a ceremonial or civil marriage. Texas is a community property state, so all assets and debts acquired during the marriage are subject to division upon divorce. If no common-law marriage is proven, there is no marital property or debt to divide.
It is important to note that there is no "common-law divorce". Once a couple's common-law marriage is legally recognised, they must go through the same legal channels to obtain a divorce as a traditionally married couple. If two years pass after a common-law couple separates and neither party has taken any action to prove or end the marriage, Texas law presumes that the couple never intended to be married, making it harder to prove the existence of a common-law marriage.
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Proving a common-law marriage
In Texas, a common-law marriage is a valid and legal way for a couple to marry. Common-law marriages, also known as informal marriages, have very specific requirements. To prove a common-law marriage, the following requirements must be met simultaneously:
- The couple must live together.
- Both parties must agree that they are married.
- Both parties must ""hold out" to others that they are married. This means that they must represent to others that they are married. Actions and conduct by each person are examined to prove this element. For example, introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple could qualify as "holding out" to others that they are married.
Documents such as lease agreements, tax returns, and insurance policies may be requested to prove a common-law marriage. If there is a dispute about whether a common-law marriage existed, it may be necessary to go to court. Texas law places a two-year statute of limitations on these types of proceedings.
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Common misconceptions about common-law marriage
"Common-Law Divorce"
A common misconception about common-law marriage is that it allows couples to avoid a formal divorce process. This is not true. If a couple has established a common-law marriage, they must obtain a legal divorce if they wish to separate, just like in a traditional marriage. This includes dividing property and assets and determining child custody and visitation rights.
Duration of Cohabitation
Another misconception is that a couple automatically enters into a common-law marriage after cohabiting for a certain duration, such as three, five, or seven years. In Texas, there is no specific time requirement for cohabitation to establish a common-law marriage. The key factor is not the length of time but rather the intention and agreement between the couple to be married, along with holding themselves out to others as married.
Secret Marriages
Some people believe that a common-law marriage can be kept secret. However, Texas law requires that a couple "hold out" to others that they are married. This means they must represent themselves as married to their community, including friends and family. This can be done through spoken words, actions, or conduct, such as introducing each other as spouses, wearing wedding rings, or filing joint tax returns.
Automatic Dissolution
There is a misconception that a common-law marriage automatically ends if the couple physically separates. However, even if the couple separates, they are still considered legally married until they obtain a divorce. If they wait too long to take action, it may become harder to prove the existence of the common-law marriage, and there is a two-year statute of limitations on these types of proceedings.
Children and Property
It is also a misconception that having children and acquiring property together automatically establishes a common-law marriage. While these factors may be considered in determining the existence of a common-law marriage, they are not the sole requirements. The couple must also agree to be married and hold themselves out to others as married.
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Divorce proceedings for common-law marriages
Common-law marriages in Texas are legally recognised as marriages. Therefore, to end a common-law marriage, a couple must go through the same legal channels to get a divorce as a traditionally married couple. This involves filing for divorce.
To prove a common-law marriage in Texas, three requirements must be met simultaneously: both parties must agree that they are married, live together as husband and wife, and "hold out" to others that they are married. "Holding out" can include introducing each other as spouses, wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, and more.
If a couple is separated for more than two years and has not taken any action to end the marriage, it is presumed that they never intended to be married, making it harder to prove a common-law marriage existed. Therefore, it is essential to act quickly if seeking a divorce from a common-law marriage.
In a divorce, Texas law states that all property and debts acquired during a common-law marriage are subject to division as community property, regardless of which spouse made the purchase or whose name is on the title. Both parties are required to submit an inventory of assets during the discovery phase of the divorce process.
It is important to note that same-sex couples can also enter into a common-law marriage in Texas, and the same divorce proceedings would apply.
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Same-sex common-law marriages
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 2015 Obergefell v. Hodges ruling, which legalised same-sex marriage across the United States.
To establish a common-law marriage in Texas, certain requirements must be met, regardless of sexual orientation. These include:
- Both parties must agree that they are married.
- Both parties must live together as a married couple.
- Both parties must "hold out" to others that they are married. This means they must represent themselves as a married couple to others. This can be done through words or actions, such as introducing each other as spouses, wearing rings on ring fingers, or signing credit applications as a married couple.
It is important to note that simply living together for a certain period does not create a common-law marriage. All three conditions must exist simultaneously, and there must be evidence to prove the existence of a common-law marriage, especially in cases of divorce or when determining inheritance rights.
If a couple separates and does not take action to end their marriage, such as filing for divorce, within two years, it will be harder to prove the existence of a common-law marriage. This also applies to same-sex couples. Texas law allows for the registration of an informal marriage by filing a Declaration of Informal Marriage with the county clerk in the county of residence.
The federal Respect for Marriage Act, passed in December 2022, provides additional statutory protections for same-sex marriages, including common-law marriages in Texas. This law ensures that all states recognise valid same-sex marriages performed in another state.
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Frequently asked questions
Yes, Texas law recognizes common-law marriages, also known as "marriages without formalities" or "informal marriages".
To enter into a common-law marriage in Texas, both parties must be eligible for marriage, be at least 18 years old, not be married to anyone else, and not be related to one another. In addition, both parties must agree that they are married, live together as husband and wife, and "hold out" to others that they are married.
You can prove a common-law marriage by providing evidence such as tax returns, lease agreements, insurance policies, or by "holding out" to others that you are married through actions such as introducing each other as spouses, wearing rings on ring fingers, or signing documents as a married couple.
Yes, a common-law marriage in Texas can only be ended by a legal divorce or death. The process for obtaining a divorce is the same as for traditionally married couples, and all property and debts acquired during the marriage are subject to division.
