Common Law Marriage in Texas

Posted by David Armstrong | Apr 26, 2022 | 0 Comments

I have a Common Law marriage in Texas, don't I?           

I have seen two different types of clients with common law marriage issues.  Either someone comes in to consult with me and is concerned that they may have entered into a common law marriage (they usually haven't) or they have never even thought about the possibility until I brought it up (and they should be concerned)

The elements of a common law marriage (or as it is known in Texas law, a marriage without formalities) are easily found—see Texas Family Code Section 2.401.   Either an informal marriage is registered with the state (which seems to make it pretty formal, in my eyes) or as is detailed in Section 2.401(a)(2) a “man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.” 

The three elements that the statute requires to show a marriage in this instance—1)   the parties agree to be married  2) they live together in Texas as husband and wife, and 3) represent to others that they are married.  

The statute further does not allow for someone under 18 to use this method to be married (see Section 2.401( c) and further if someone in such a marriage is going to prove they are married, they need to bring an action on it within two years of the date of separation or it is presumed there was no agreement to be married (see section (b) of the statute)

How, then, do you prove a common law marriage?  It almost always comes down to what proof there is of representing to others that they are married (or as is often talked about ‘holding out' to others that they are married)    Where do people find such representations so that this is not just a ‘he said, she said' kind of case?   In writing, almost always.   When I have dealt with this type of case, I have found accounts taken together in the name of the ‘married' couple, taxes filed as spouses together, or quite often, covering the other person as a spouse on health insurance.   Each of those items can be found in writing, and each is great evidence of both the agreement and the representation part of the proof needed.  

Alas, there is no such thing as common law divorce.   If you are common law married, you must get a real divorce, but that is a different topic. 

About the Author

David Armstrong

J.D. University of Houston, 1995


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