What is Common Law Marriage in Texas

A court may determine that a couple that never acquired a marriage certificate is nonetheless deemed to have a “common law marriage” before the State of Texas. This determination can have a major impact upon every aspect of a family law case.

The Basics

A court will consider finding a common law marriage when all of the following three conditions have been met: 

• The couple entered into an agreement to be married; and
• The couple held out to others that they were married; and
• The couple lived together in Texas.

While the first and third requirements are self-explanatory, the second is frequently a source of confusion. A couple that “holds themselves out” as married is one that consistently and publicly represents their relationship as one of marriage. Documentation of this second requirement might include joint tax returns or applications for insurance as a “married couple.” Once a court finds a common law marriage, a spouse can petition for a portion of a community estate.

Challenging a Common-Law Marriage Claim

When an individual files for divorce without a marriage license, they are claiming a common law marriage. However, their spouse might want to challenge this claim. To accomplish this, the spouse could prove that either:

1. the couple never entered into an agreement to be married, or
2. the couple never publicly represented as married, or
3. the couple never lived together in the state of Texas

According to the Texas Family Code, Section 2.401, If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is a rebuttable presumption that the parties did not enter into an agreement to be married. Furthermore, a person under 18 years of age may not: be a party to an informal marriage, or execute a declaration of informal marriage under Section 2.402. Moreover, a person may not be a party to an informal marriage or execute a declaration of informal marriage if the person is presently married to another person.

Case Law

For a real-life example, see Eris v. Phares, 39 S.W.3d 708, 710 (Tex. App. 2001) [Where appellant testified she and appellee did not agree before closing that he would retain an interest in the house he owned after she purchased it. Appellee stated that appellant told him they did not have to be married to be considered married. After that conversation, appellee testified, he believed that they were married. The court found that appellee’s testimony was more than a scintilla of direct evidence that the two agreed to be married.The court held that the evidence was factually sufficient to support a finding of an agreement to be married. However, the court held that the evidence was factually insufficient to support the required element of common-law marriage that appellee and appellant represented to others that they were married before January 30, 1997. Thus, the court reversed the trial court’s judgment.]

Declaration of Informal Marriage

A declaration of informal marriage is a document filed with a county clerk that demonstrates a couple’s intent to be married. These declarations are not equivalent to a marriage license. However, they can function as valuable evidence in the event of separation. If you believe that you may be part of a common law marriage, or wish to do what you can to establish a common law marriage prior to divorce, consult an experienced family law attorney.