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Common Law Marriage


On topic of frequent misunderstanding in Texas is the law concerning the so-called "common-law marriage." Although most people think of this subject only in the context of family law matters (such as whether either party is entitled to alimony if the couple separates), in reality the topic touches a myriad of areas including real estate law (homestead rights and whether both parties must sign a deed or mortgage), probate and estate planning (the rights of the surviving spouse in the decedent's estate, and entitlement to death benefits under Social Security or employer-sponsored plans), and personal injury (the rights of a spouse to make certain claims such as a "bystander" claim or for loss of consortium.)

The Law

Texas law refers to the common-law relationship as an "informal marriage," in contrast to marriages by formal ceremony. The primary statute of interest is Family Code Chapter 2, Subchapter E. In brief, the law states that an informal marriage can be established by proving that the parties:

  1. Agreed to be married;
  2. Lived together as husband and wife; and
  3. Represented to others that they were married.

Notice that there is no particular time period required to satisfy the "living together" requirement. In theory, if a couple has agreed to be married and tells other people they are married, an informal marriage could develop after a single day of living together.

An informal marriage can also be established by signing a "Declaration of Informal Marriage" in the office of the local County Clerk.

Proving the Common-Law Marriage

Usually there is very little question about whether a couple have lived together. In disputed cases, the issues tend to revolve around whether the parties agreed to be married and represented to others that they were married. Proof frequently involves the testimony of family or friends, and examination of records such as joint tax returns, applications for loans or credit cards, and hotel reservations.

Is there a Common-Law Divorce?

No. Once a husband and wife are married, whether that marriage occurs by ceremony or by common law, a divorce is required to terminate that relationship. However, Texas law does provide that if no action is commenced to prove a common-law marriage within two years after the couple separates, it is presumed that the couple did not intend to be married. Basically, this means it becomes much harder (but not impossible) to prove a common law marriage if no lawsuit or administrative proceeding is filed within two years after the relationship ends. Persons wishing to protect rights as a spouse under a common-law marriage should act quickly to establish the existence of that relationship.

Roberts & Roberts, LLP