Common Law Marriage in Texas
Common law marriage, also known as informal marriage, allows couples in Texas to be legally married without a formal ceremony or marriage license. It’s a valid union recognized under Texas law, granting the same rights and responsibilities as a traditional marriage, including property division, inheritance, and spousal support. This type of marriage is particularly relevant in situations like divorce or estate disputes, where proving its existence can significantly impact legal outcomes.
Key Requirements for Establishing a Common Law Marriage
To form a common law marriage in Texas, couples must meet three essential elements outlined in Section 2.401 of the Texas Family Code:
- Agreement to be married: Both parties must have a mutual, present intent to be husband and wife, which can be shown through words or actions like naming each other as beneficiaries on insurance policies or filing joint tax returns.
- Living together in Texas as spouses: The couple must cohabitate in the state and maintain a household as a married couple—no minimum time period is required.
- Representing themselves as married to others: Often called “holding out,” this involves public actions like using the same last name, introducing each other as spouses, or signing documents as a married couple.
Additionally, both individuals must be at least 18 years old, not related, and not already married to someone else. Simply living together, even for years or having children, does not automatically create a common law marriage—intent and public representation are crucial.
Couples can formalize their status by filing a Declaration of Informal Marriage with the county clerk, which serves as official proof. Same-sex couples can also establish common law marriages under the same rules, following the U.S. Supreme Court’s decision in Obergefell v. Hodges (2015).
Proving a Common Law Marriage
If a dispute arises, the party claiming the marriage bears the burden of proof. Courts look for evidence supporting the three requirements, such as:
- Joint financial documents (e.g., bank accounts, loans, or tax returns filed as married).
- Affidavits or testimony from friends and family confirming the couple presented as married.
- Shared property ownership, insurance beneficiary designations, or use of spousal titles in everyday life.
Texas law imposes a two-year statute of limitations: If no legal action (like a divorce filing) is taken within two years of separation, there’s a presumption that no marriage existed, making it harder to prove later. This can complicate matters in probate or benefits claims.
Divorce and Legal Issues in Common Law Marriages
A common law marriage must be dissolved through a formal divorce, just like a ceremonial one. Texas treats all property acquired during the marriage as community property, meaning it’s divided equally upon divorce, regardless of whose name is on the title. Debts, child custody, support, and spousal maintenance are handled similarly.
Key legal issues often include:
- Proving the marriage exists: If one spouse denies it, the court may require extensive evidence, leading to contested hearings.
- Property and debt division: Without proof of marriage, assets remain separate, but a proven marriage can entitle a spouse to half of community property.
- Time limits: Failing to file for divorce within two years of separation can result in the court presuming no marriage, affecting rights to alimony or inheritance.
There’s no such thing as a “common law divorce”—couples can’t simply separate; a court order is needed to end the union legally.
Examples from Texas Case Law and Scenarios
In Estate of Claveria v. Claveria (1981), the Texas Supreme Court emphasized that while common law marriages are recognized, there’s no informal way to dissolve them—a formal divorce is required, highlighting the status as a full legal marriage.
A common scenario: A couple lives together for 10 years, shares finances, and refers to each other as spouses. Upon separation, one files for divorce, but the other denies the marriage. The court reviews joint accounts and witness testimony to affirm the union, allowing for property division.
In Russell v. Russell (1989), the court clarified that a future intent to marry isn’t enough; there must be a present agreement, which affected a divorce where one party claimed only an engagement existed.
Another issue arose in a case where a partner sought inheritance after death; the surviving spouse had to prove the marriage through public representations, as no declaration was filed, leading to a probate dispute.
These examples show how disputes often center on intent and evidence, especially in high-stakes situations like asset division or child custody.