Informal Marriage Archives - Tessmer Law Firm

What is Common-Law Marriage in Texas

Tessmer LF — Wed, 08 Mar 2023 18:46:08 +0000

In Texas, common-law marriage, or informal marriage, is where a man and woman become husband and wife without getting a marriage license or having a religious ceremony. This form of marriage confers all the same rights we recognize in a formal or traditional marriage. Before its independence, Texas laws were based on Spanish and European civil laws.

The History of Common-Law Marriage in Texas

In 1840, The Republic of Texas adopted the English system of laws known as “common-law.” This mixing of legal systems is why Texas is one of the few states to recognize both traditional and common-law marriage as legally equal. Most informal marriages become important at the end of the marriage. This means once a common-law marriage is established, it is treated the same as a formal marriage. For example, a spouse is entitled to half of the assets accrued during a common-law marriage. Additionally, common-law spouses also have inheritance rights at the death of a spouse.

Requirements of a Common-Law Marriage in Texas

According to Chapter 2.401 of the Texas Family Code, what constitutes a common-law marriage in Texas requires a couple to:

Live together as man and wife in Texas;
Agree to marriage;
Tell others in Texas they are married.

A common misconception is that a couple living together for a certain amount of time will automatically become married in the eyes of the law. In Texas, no matter how long you live together, you must agree to the marriage and present yourselves as husband and wife to have an informal marriage. Lastly, the third requirement is representing yourselves as married to the community, this includes examples such as filing joint tax returns, opening joint bank accounts, and referring to one another as husband and wife in front of others.

Proving a Common-Law Marriage in Texas

A couple can file a declaration with the county clerk to register their common-law marriage, however, it is not required. If the couple chooses not to, they may need to present the court with documents such as their joint tax returns or joint bank accounts to “prove” the marriage. If a dispute arises questioning the legitimacy of their marriage, the marriage may be proven by registering their marriage through the court or by proving all three elements of a common law marriage. However, if the parties have to prove their marriage through the latter, they must do so within two years after separating or after they stopped living together. If the parties fail to do so, Chapter 2.401(b) of the Texas Family Code presumes that the parties did not agree to be married.

Common Questions and Answers

Is common law marriage recognized in Texas?

Texas recognizes common-law marriage, which is also called an informal marriage. A couple can establish an informal marriage without having a traditional wedding ceremony or obtaining a traditional marriage license, provided the legal requirements are met.
Does common law marriage exist in Texas?

Yes. Texas is one of the states that recognizes common-law, or informal, marriage. However, simply living together does not automatically create a common-law marriage. The parties must meet specific legal requirements.
What is the difference between formal and informal marriage license?

A formal marriage generally involves obtaining a marriage license and having the marriage solemnized through a legally recognized ceremony.

An informal marriage does not require a traditional wedding ceremony. Under Texas Family Code § 2.401, it can be established either by filing a Declaration of Informal Marriage with the county clerk or by proving that the couple agreed to be married, lived together in Texas as spouses, and represented to others that they were married.

Technically, Texas does not issue a “common-law marriage license.” Instead, couples may file a Declaration and Registration of Informal Marriage with the county clerk.
What requirements must be met for a common-law marriage in Texas?

Under Texas law, a couple generally must establish all three of the following:

1. 1. They agreed to be married.
  2. After agreeing to be married, they lived together in Texas as a married couple.
  3. They represented to others that they were married.

What qualifies as common law marriage in Texas?

Living together alone is not enough. To establish a common-law marriage without filing a declaration, the couple must have agreed to be married, lived together in Texas as spouses after that agreement, and represented themselves to others as married.

Evidence of representing yourselves as married may include introducing one another as spouses, using the same last name, filing certain documents as married, listing one another as spouses on insurance or other records, or signing documents as a married couple. Courts consider the facts and circumstances of each case.

Importantly, an agreement to marry in the future is not the same as an agreement that you are already married.
What is considered married in Texas?

A person may be legally married in Texas through a formal marriage or an informal marriage. An informal marriage, once established, has the same legal status as a formal marriage.

Therefore, there is no separate category of “lesser” marriage simply because a couple did not have a wedding ceremony. An established informal marriage can affect property rights, inheritance, divorce, and other legal matters in the same way as a formal marriage.
How long do I need live together as man and wife to be considered a marriage?

There is no minimum amount of time. Texas does not automatically consider a couple married after living together for a certain number of years. Living together for three, five, seven, or any other number of years does not by itself establish a common-law marriage.

The important issue is whether the legal requirements for an informal marriage were met—not how long the couple lived together.
How does common law marriage work in Texas?

Texas common-law marriage works by recognizing a marriage without requiring the traditional formalities of a wedding ceremony when the legal requirements for an informal marriage are satisfied.

There are two primary ways to establish one:

Declaration: The couple signs and files a Declaration of Informal Marriage with the county clerk.
Evidence: If no declaration was filed, the couple may establish the marriage by proving that they agreed to be married, subsequently lived together in Texas as spouses, and represented to others that they were married.

One important deadline applies when relying on the second method: if the couple separates and stops living together, there is a rebuttable presumption that no informal marriage existed if a proceeding to prove the marriage is not commenced before the second anniversary of the separation.

Important: Common-law marriage is a legal status, not simply a description of a long-term relationship. Because determining whether an informal marriage exists can depend on the specific facts and evidence, someone facing a dispute over marital status, property, inheritance, or divorce should consult a Texas family-law attorney.

The post What is Common-Law Marriage in Texas appeared first on Tessmer Law Firm.

Entering Into A Common-Law Marriage

Tessmer LF — Thu, 12 May 2022 00:00:00 +0000

Last week we discussed what a common-law marriage entails, but how do you enter into one?

If You Would Like To Enter A Common-Law Marriage You Must Be:

over 18;
marrying someone of the opposite sex;
not related to your future spouse;
not currently married.

More Requirements When Entering A Common-Law Marriage

Nobody under the age of 18 may enter into an informal marriage, even with parental approval. Besides being over 18, you cannot be relatives by consanguinity. Couples of the informal marriage may be same-sex since becoming legal for every state in 2015. You can read more about the Obergefell v. Hodges decision here. Finally, both parties must be single. This means, that if one person is already in a marriage, he or she must divorce his or her spouse whether the marriage is common-law or not. It is not possible for one person to have two or more spouses in any form.

The most straightforward way to enter into a common-law marriage is to sign a declaration of marriage at the county clerk’s office. But, that is not necessary. You can move in together, and behave as a husband and wife would, inferring a common-law marriage agreement.

What If I Want To Move To A Different State?

Not all states recognize common-law marriage. Your marriage will stand in Texas but not if you move to a new state that does not honor informal marriages. Consider this possibility when entering into a common-law marriage. Find a list of states allowing informal marriages here.

To avoid a common-law marriage, the best thing to do is draw up a contract with a lawyer stating that while you live with this person, you wish to remain single. With a contract in place, you can live with a significant other without ever becoming spouses. Keeping bank accounts separate, filing separate tax returns, and of course, not referring to your partner as a spouse, will keep you single!