Cecily Zamora
Texas is one of the few states that recognizes common-law marriages, which are also known as informal marriages. To establish a common-law marriage in Texas, couples must fulfill certain requirements, including cohabitation, agreement to be married, and holding themselves out to others as married. There is no requirement for a specific duration of cohabitation, and the length of time a couple lives together is not a factor in proving a common-law marriage. However, if a couple separates and no legal action is taken within two years, Texas law presumes that a common-law marriage never existed, making it more challenging to prove otherwise.
| Characteristics | Values |
|---|---|
| Time for common-law marriage | There is no time requirement for common-law marriage in Texas. It could be seven months or seven years. |
| Registration | Couples can register their common-law marriage by filing a "declaration of informal marriage" with their county clerk's office. |
| Proof | Proof of common-law marriage can include lease agreements, tax returns, insurance policies, and other documents. Testimony from friends and family may also be used. |
| Separation | If a couple is separated for more than two years and has not taken any action to end the marriage, Texas law presumes that the couple never intended to be married. |
| Divorce | Common-law marriages in Texas require a legal divorce, similar to formal marriages. |
| Same-sex marriage | Common-law same-sex marriages are recognized in Texas. |
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What You'll Learn
Common-law marriage requirements
Common-law marriages in Texas are recognised as legally valid marriages, even though spouses do not need to have a ceremony or obtain a marriage license. However, certain legal requirements must be met.
Firstly, both parties must be at least 18 years old, unrelated, and not currently married to someone else.
Secondly, 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.
Thirdly, the couple must hold themselves out to others as husband and wife. This can be achieved through reputation, i.e., the belief by the couple's community that they are married, or through explicit declarations, such as introducing each other as spouses or wearing rings on ring fingers.
Couples can register their common-law marriage by filing a "declaration of informal marriage" with their county clerk's office. If no declaration was filed, and there is a dispute over whether a common-law marriage existed, it may be necessary to go to court to prove the marriage. In this case, documents such as lease agreements, tax returns, and insurance policies may be requested.
It is important to note that if two years pass after a common-law marriage couple separates and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed.
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Proving a common-law marriage
Texas is one of the few states that recognizes 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.
To prove a common-law marriage in Texas, the couple must meet three requirements:
- Cohabitation: The couple must live together in Texas and do things associated with being a married couple, such as maintaining a household together. The length of time they live together is not a factor in proving a common-law marriage.
- Agreement: Both parties must agree to be married in the present, immediate, and permanent sense. An agreement to get married in the future does not count.
- Holding Out: The couple must represent themselves to others as married. This can be done through spoken words or actions such as introducing each other as spouses, wearing rings on their ring fingers, signing credit applications as a married couple, filing joint tax returns, or adding each other to family memberships.
If a couple meets these three requirements, they are considered legally married and have the same rights as a couple with a marriage license.
In some cases, it may be necessary to go to court to prove a common-law marriage, especially if the couple is separating and there are disputes over property and liabilities. Documents such as lease agreements, tax returns, insurance policies, and joint memberships can be used as evidence to prove a common-law marriage. Testimony from friends and family may also be used to show that the couple represented themselves as married.
It is important to note that if two years pass after a common-law couple separates and neither party has taken any action to prove the marriage, Texas law presumes that the marriage never existed. Therefore, it is crucial to seek legal advice and take appropriate action promptly if you need to prove a common-law marriage.
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Common misconceptions
Common-law marriage, or informal marriage, is a legally valid form of marriage in Texas. However, there are several misconceptions surrounding this topic. One common misconception is that a couple automatically enters into a common-law marriage if they live together for a certain period of time, such as six months or even 20 years. This is not true in Texas or any other state. While cohabitation is a requirement, there is no minimum duration specified by Texas law. The length of time a couple lives together is not a factor in proving a common-law marriage.
Another misconception is that a couple can be in a secret common-law marriage. Texas caselaw states that couples must "'hold out' to others as married, meaning they must represent themselves as married to their community. This can be done through spoken words or actions, such as introducing each other as spouses, wearing rings on their ring fingers, or signing documents as a married couple. The purpose of this requirement is to ensure that common-law marriages are not kept secret.
Additionally, some people mistakenly believe that common-law marriages are easier to dissolve than traditional marriages. However, couples in a common-law marriage must still file for divorce and go through the same legal process as those in a formal marriage. If a couple separates and does not take action to end the marriage within two years, the state may presume that the marriage never existed, making it harder to prove a common-law marriage existed.
Furthermore, it is important to note that common-law marriage is not a way to avoid legal marriage. Both parties must be eligible for marriage, unmarried, and at least 18 years old. Same-sex couples can also enter into common-law marriages in Texas due to the U.S. Supreme Court's decision in Obergefell v. Hodges. While there is no requirement to register a common-law marriage, couples can choose to do so by filing a declaration with the county clerk.
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Divorce and separation
Ending a common-law marriage in Texas is similar to ending a formal marriage. If a common-law couple decides to split up, they must file for divorce. Texas does not have a status known as "legal separation". Once married, a couple remains married until they divorce or one spouse passes away.
If court proceedings are not filed within two years of the separation, Texas law presumes a common-law marriage never existed unless proven otherwise. This two-year statute of limitations also applies to proceedings to prove a common-law marriage in the event of a dispute.
If a common-law marriage is proven, community property and debts are divided in the same way as in a formal marriage. If no common-law marriage is proven, there is no marital property or debts to divide.
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.
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Same-sex common-law marriage
Same-sex couples in Texas can enter into a common-law marriage, also known as an informal marriage. This is a legal marriage without a ceremony or other formalities. Texas law does not require couples to be together for a specific period before they can declare themselves to be in a common-law marriage.
To prove a common-law marriage, there are three requirements that must be met:
- Both parties must agree to be married.
- After agreeing, they must cohabit together in Texas as a married couple.
- They must represent themselves to others in Texas as a married couple.
This third requirement, also known as the "hold out" requirement, means that the couple must introduce themselves as spouses, wear rings on their ring fingers, or sign credit applications as a married couple. Filing joint tax returns, adding a partner to a "family" country club membership, and even the address on Christmas card envelopes can also be considered evidence of a common-law marriage.
It is important to note that proving a common-law marriage can be crucial when a relationship is ending (divorce) and in determining inheritance rights. If a common-law marriage is proven, community property and debts will be divided as if the couple were formally married.
Additionally, if a couple separates for more than two years without taking any action to end the marriage, it becomes harder to prove the existence of a common-law marriage. Consulting with an LGBTQ+ family law lawyer is recommended to clarify the situation and protect the rights of both parties.
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Frequently asked questions
A common-law marriage, also known as an informal marriage, is a legally valid marriage without a ceremony or marriage license. It is a valid and legal way for a couple to marry in Texas.
There are three requirements for a common-law marriage in Texas: both parties must live together, agree that they are married, and hold themselves out to others as a married couple. Both parties must also be at least 18, unrelated, and not currently married to someone else.
No, Texas law does not require couples to be together for a specific period of time before they can declare themselves to be in a common-law marriage. The time length is a common myth associated with common-law marriage in Texas.
Couples can register their common-law marriage by filing a "declaration of informal marriage" with their county clerk's office. Documents such as lease agreements, tax returns, and insurance policies may also be used to prove a common-law marriage.
If a common-law marriage cannot be proven, it may be necessary to go to court to resolve disputes. If two years pass after a separation and neither party has taken any action to end the marriage, Texas law presumes that the couple never intended to be married.
