We are all familiar with a marriage where a marriage certificate has been applied for, a ceremony is conducted by a member of the clergy, a judge or justice of the peace, or other person legally authorized to officiate at a wedding, and the marriage certificate is then filed with the county clerk’s office.
In Texas, a couple can become married through informal marriage, also called common law marriage, which can be a legal way for a couple to be considered married without the formality of a ceremony or the obtaining of a license.
Below are some of the myths and questions regarding common law marriage:
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:
The man and woman agreed to be married;
After the agreement they lived together in this state as husband and wife; and,
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.
Christopher M. Kirker is a Partner and Trial Attorney at Kirker Davis for complex family law litigation, primarily high-net-worth Texas divorce, custody, division of property, business ownership litigation, and trial consulting.
Education: Baylor University School of Law, cum laude, J.D. (2010) Years of Experience: +13 years
