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Common Law Marriage in Texas

INFORMAL MARRIAGE

Common Law Marriage in Texas

Common law marriage, also known as informal marriage, is a legal way for a couple to marry in Texas without the formality of a ceremony or the obtaining of a license. Not all states have common law marriage, but one made in Texas will be recognized by other states due to the “full faith and credit” rule of the United States Constitution.

The history of common law marriages is a long one, dating back in history to Medieval England. It was not always possible for a couple wishing to be married to come before a church officiant or a justice in rural locations, so it developed through time that a marriage could be created informally through common law. Common law is derived through custom and judicial precedent, not through statutes.
According to the TEXAS FAMILY CODE §2.401(a)(2), Texas requires the following be proved by evidence before a common law marriage can be recognized:

  1. The man and woman agreed to be married;
  2. After the agreement they lived together in this state as husband and wife; and,R
  3. Represented to others that they were married.

It should be noted that although the Texas Constitution has not been changed and still reads that a marriage is between a man and a woman, a same-sex couple can have a common law marriage according to Obergefell v. Hodges, which was decided by the United States Supreme Court in 2015.

Representing to others that a couple is married through informal marriage is carried out through actions such as exchanging rings, introducing each other as spouses, signing joint credit applications, filing joint tax returns, adding both parties to memberships, and other actions normally conducted by a married couple.

A couple wishing to document their common law marriage may do so by contacting their county clerk and completing a “Declaration and Registration of Informal Marriage”.

A common law marriage cannot occur if one or both parties are under 18 years of age, a party is presently married to a person who is not the other party to the informal marriage, the parties are related, or the couple is formally engaged to be married.

Myths exist regarding the length of time required for a relationship to be considered a common law marriage. The reality is that there is no set minimum time in Texas, which can result in a court reviewing the facts on a case-by-case basis to see if a couple has fulfilled the requirements set out in the TEXAS FAMILY CODE.

Another myth is that a common law marriage can eliminate the need for a divorce in the event the two parties decide to no longer be a couple. But, once a common law marriage is established to be valid, then the couple will need to terminate their relationship through a standard divorce suit.

There is a timeframe for which one party must file for a divorce once they have decided to no longer be considered married. Once a couple has physically separated, the party seeking a divorce must file a suit within two years of the separation. Otherwise, there may be a presumption that no marriage ever existed.

Common law marriages can be complex, particularly when children are involved, property is purchased together or separately, health issues arise, or one of the parties dies. Many rights are only granted to legally married couples.

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Common Law Marriage FAQs

 

We have been living together for a while; does that automatically make us married?

In Texas, there is no statutory set period of time that a couple must live together to be considered married.

My partner sometimes uses my last name when we check into a hotel or they sign their name on a contract or agreement. Could we be considered married?

Perhaps; representing to others that you are married is one of the elements listed in the Texas Family Code §2.401(a)(2),

How do I know if I am in a common law marriage?

According to the Texas Family Code §2.401(a)(2), Texas requires the following be proved by evidence before a common law marriage can be recognized:

  1. The man and woman agreed to be married;
  2. After the agreement they lived together in this state as husband and wife; and,
  3. Represented to others that they were married.

Representing to others can be carried out through actions such as exchanging rings, introducing each other as spouses, signing joint credit applications, filing joint tax returns, adding both parties to memberships, and other actions normally conducted by a married couple.

Can a same-sex couple have a common law marriage?

It should be noted that although the Texas Constitution has not been changed and still reads that a marriage is between a man and a woman, a same-sex couple can have a common law marriage according to Obergefell v. Hodges, which was decided by the United States Supreme Court in 2015.

Is there a way to formally document a common law marriage?

A couple wishing to document their common law marriage may do so by contacting their county clerk and completing a “Declaration and Registration of Informal Marriage”.

Is there a common law divorce to terminate our relationship where we declare that we are no longer a married couple?

There is no such thing as a common law divorce. A couple married through common law will have to sever their relationship through a standard divorce suit.

There is a timeframe for which one party must file for a divorce once they have decided to no longer be considered married. Once a couple has physically separated, the party seeking a divorce must file a suit within two years of the separation. Otherwise, there may be a presumption that no marriage ever existed.

My partner and I have lived together for years and meet the requirements for a common law marriage. Will a healthcare provider automatically grant me rights to participate in health care related decision making for my partner?

If a Medical Power of Authority has been signed by your partner, your status as their agent will give you legal authority.

The Texas Consent to Medical Treatment Act (CMTA), controls who the hospital or doctor determines has the power to make medical decisions in the event you or your common law spouse is incapacitated. As a “spouse” is the first authorized decision maker, a provider might accept your authority. But, if there is a challenge to your authority, perhaps by an adult child, then the doctor or hospital will need to request proof of your status as a married couple.

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