Anaya Nolan
Texas is one of the few states that recognize common-law marriages, also known as informal marriages. Common-law marriages are legally valid and do not require a marriage license or traditional ceremony. Couples must, however, meet specific requirements to be considered married under common law, and proving a common-law marriage can be challenging, especially if one partner denies the union. If a common-law couple decides to split up, they must file for divorce, similar to a formal marriage.
| Characteristics | Values |
|---|---|
| Common law marriage recognized | Yes |
| Requirements | Mutually agree to be married, subsequently cohabitate in Texas as a married couple, and represent to others they are married |
| Proving a common law marriage | Sign a "declaration of informal marriage" with the county clerk's office |
| Divorce | Common law married couples must file for divorce; if no action is taken within two years of separation, Texas law presumes the marriage never existed |
| Property | All property acquired during a common law marriage is community property and will be divided the same way as in a formal marriage |
| Same-sex marriage | Recognized |
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What You'll Learn
Common law marriage requirements in Texas
Texas is one of the less than 20 states that recognize common-law marriages. Common-law marriages, also known as informal marriages, are considered legally valid in Texas even if the spouses did not have a formal ceremony or obtain a marriage license.
To establish a common-law marriage in Texas, certain legal requirements must be met. There is a common misconception that if a couple lives together for a certain amount of time, they are considered to be in a common-law marriage. This is not true in Texas or anywhere else. The time a couple has lived together does not determine whether they are in a common-law marriage.
To fulfill the living together requirement, the couple must cohabitate in Texas as spouses. There is no requirement for how long the couple must live together, but they must maintain a household together and do things associated with being a married couple.
In order to establish a common-law marriage, the couple must hold themselves out to others as husband and wife. This can be achieved in two ways: reputation and declaration. Reputation refers to the belief by the couple's community, including their friends and family, that the couple is married. Testimony by these people may be used to show that the couple represented to others that they were married. Another way to prove that the couple is holding themselves out to the public as married is through declarations they have made.
There are two ways to establish a common-law marriage in Texas. The first way is for the couple to sign a "declaration of informal marriage" with the county clerk's office. The second way is to prove the three elements listed in Section 2.401 of the Texas Family Code. If a common-law marriage is established, the spouses hold the same legal rights as a couple who have a marriage license.
Proving the existence of a common-law marriage can be important when a relationship is ending and in determining inheritance rights. Under Texas law, all property acquired during a marriage, whether formal or common-law, is considered community property. If a common-law marriage is proven, the community property will be divided in the same way as if the parties were formally married. Likewise, debts accumulated during a common-law marriage are also divided between the spouses. If a common-law marriage is not proven, there is no marital property or debts to divide.
If a common-law couple decides to split up, they must file for divorce. If court proceedings are not filed within two years of the separation, Texas law presumes that the common-law marriage never existed unless it is proven otherwise.
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Ending a common law marriage in Texas
Texas is one of the less than 20 states that recognize common-law marriages. Common-law marriages, also known as informal marriages, are considered valid and legal in Texas. However, ending a common-law marriage in Texas is similar to ending a formal marriage. If a couple in a common-law marriage decides to separate, they must file for divorce.
To establish a common-law marriage in Texas, certain legal requirements must be met. Firstly, the couple must cohabit in Texas as spouses. There is no requirement for how long the couple must live together, but they must maintain a household together and do things associated with being a married couple. Secondly, the couple must hold themselves out to others as husband and wife. This can be achieved through reputation and declaration. The community's belief that the couple is married can serve as evidence, and their friends' and family's testimonies may be used to show that the couple represented themselves as married. Spoken words alone can fulfill this requirement, but actions and conduct are also examined. 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 as married. Finally, both parties must agree that they are married. Texas caselaw states that there must be evidence of a present, immediate, and permanent intention to have a marital relationship. An agreement to get married in the future does not count as an agreement to be married.
If a couple in a common-law marriage separates, they have the same protections as those in a traditional marriage, such as responsibilities for joint debt, child support, or other issues that arise during a divorce. However, it is important to note that Texas law presumes a common-law marriage never existed if court proceedings are not filed within two years of the separation. This statute of limitations makes it harder to prove the existence of a common-law marriage after a long period of separation. Therefore, it is advisable not to delay seeking a divorce if separated from a common-law spouse.
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Common law marriage myths in Texas
Texas is one of the few states that recognize common-law marriages. However, there are several misconceptions about common-law marriages in Texas. Here are some of the most common myths:
Myth: Living together for a certain period of time automatically creates a common-law marriage
Fact: While living together in Texas is a requirement for a common-law marriage, there is no requirement for how long the couple must live together. It could be seven months or seven years. What matters is that the couple maintains a household together and conducts themselves as a married couple. The couple must also agree to be married and hold themselves out to others as married.
Myth: Common-law marriages do not have the same rights as formal marriages
Fact: Common-law marriages, also known as informal marriages, are legally valid in Texas. Common-law married couples have the same rights as formally married couples, including health care, property, child custody, tax, and inheritance rights. They also have the same rights to divorce and must follow the same legal process as formal marriages in the event of a separation.
Myth: There is such a thing as a “common-law divorce”
Fact: There is no "common-law divorce." If a common-law married couple decides to separate, they must file for divorce just like any other married couple. However, if two years pass after the separation and neither party has filed anything to prove the marriage, Texas law presumes that the marriage never existed.
Myth: It is easy to prove a common-law marriage
Fact: Proving a common-law marriage can be complex and may require going to court. Couples who choose not to declare their common-law marriage may need to provide documents such as lease agreements, tax returns, and insurance policies to prove their marriage. It is recommended to consult with an attorney or legal professional for guidance on proving a common-law marriage.
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Same-sex common law marriage in Texas
Same-sex common-law marriage, also known as informal marriage, is recognised as a legally valid marriage in Texas, even if the spouses did not have a ceremony or obtain a marriage license. This means that same-sex couples in Texas have the same rights as couples with a marriage license, including during a divorce.
To establish a common-law marriage in Texas, certain legal requirements must be met. The couple must agree to be married, live together in Texas as spouses, and represent themselves to others in Texas as a married couple. There is no requirement for how long the couple must live together, but they must maintain a household together and do things associated with being a married couple. The couple can prove their marriage by signing a "declaration of informal marriage" with the county clerk's office.
If a common-law couple decides to split up, they must file for divorce, and if court proceedings are not filed within two years of the separation, Texas law presumes the marriage never existed unless proven otherwise.
The Texas Department of State Health Services states that "applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship." However, it is recommended that couples consult with an LGBTQ+ family law lawyer to clarify the situation and create written documents.
The Respect for Marriage Act, passed by the United States Congress in December 2022, provides statutory protections for same-sex marriages, including common-law marriages in Texas. This federal law replaces provisions defining marriage as between a man and a woman with provisions recognising any marriage between two individuals that is valid under state law.
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Legal rights of common law spouses in Texas
Texas is one of the few states that recognize common-law marriages. A common-law marriage, also known as an informal marriage, is a legally valid marriage without a formal ceremony or marriage license. While the requirements for common-law marriage vary by state, in Texas, there are three conditions that must be met simultaneously for a couple to be considered common-law married:
- Agreement: Both parties must agree that they are married. This can be proven through spoken words or actions such as introducing each other as spouses, wearing rings on ring fingers, signing credit applications or leases as a married couple, filing joint tax returns as spouses, making joint purchases, etc.
- Cohabitation: The couple must live together as husband and wife in Texas. There is no requirement for how long they must live together, but they must maintain a household together and do things associated with being a married couple.
- Holding Out: The couple must "hold out" to others that they are married. This means they must represent to their community, including friends and family, that they are married. This can be proven through testimony from those who know the couple.
Once a common-law marriage is established in Texas, it holds the same legal rights as a formal marriage. This means that if the couple separates, they have the same protections as a traditionally married couple, such as responsibilities for joint debt, child support, and property division. Additionally, in the event of a spouse's death, the surviving spouse may be entitled to inherit from the deceased spouse's estate if there is no will.
It is important to note that ending a common-law marriage in Texas is similar to ending a formal marriage. If a common-law married couple decides to split up, they must file for divorce. If court proceedings are not filed within two years of the separation, Texas law presumes the common-law marriage never existed unless proven otherwise.
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Frequently asked questions
Yes, Texas is one of the few states that recognise common-law marriages.
There are two ways to establish a common-law marriage in Texas. The first is for the couple to sign a "declaration of informal marriage" with the county clerk's office. The second is to provide evidence that the couple has met three conditions: 1) mutually agree to be married, 2) subsequently cohabitate in Texas as a married couple, and 3) represent to others that they are married.
Proving a common-law marriage can be challenging, especially if one partner denies the marriage. It may be necessary to go to court, and the law can be complex, so you may wish to talk to an attorney. Evidence that can be used to prove a common-law marriage includes testimony from friends, family, and others who know the couple.
The dissolution process is similar to that of a traditional marriage. Couples must file for divorce, and Texas community property laws dictate that both spouses own any property acquired during the marriage equally. Dividing these assets can become complicated, especially if one partner claims the marriage never existed or tries to hide assets.
