Common Law Marriage in Texas

Texas Common Law Marriage Guide

Texas is one of the few states that recognize common law marriage. Under Texas law, Common law marriage, also known as informal marriage or marriage without formalities, is a legal way for couples in Texas to get married. To put it simply, it’s a union where two consenting adults become a couple without going through the process of obtaining a marriage license or having a formal marriage ceremony.

As more Texas couples cohabitate before marriage, the number of couples choosing to live under one roof without getting married altogether has also risen. But how do you know that you and your partner have just “moved in together” or are actually in a common law marriage?

In this guide, we go over some frequently asked questions about common law marriage in Texas. Be sure to review your specific situation with an experienced Austin divorce attorney with experience in common law marriages.

What is Common-Law Marriage?

Texas law states that you and your partner can be considered married if you both agree to marriage, live in Texas, and present yourself to others as married. There are other types of evidence that may be presented in Court s proof of a common law marriage, such as business and tax filings, property filings, and by testimony of people who knew you as a couple.

In the end, even if you do not have a formal agreement, and are not legally married, if you have introduced your partner as a spouse, or signed a legal form listing your partner as your spouse, these will be considered proof of a common law marriage.

Should the couple decide to separate, a common law marriage requires a divorce. This process will include all the proceedings that a divorce proceeding has for an actual marriage.

There are currently nine states in the United States that recognize common law marriage and Texas is one of them.

What Are the Vital Elements of a Common Law Marriage?

In Texas, a common law marriage is established by meeting specific requirements set forth by the state. According to Chapter 2.401 of the Texas Family Code, a common law marriage must have these three elements:

• The couple has agreed to be married;
• The couple has agreed to live together as husband and wife;
• The couple has represented themselves as a married couple to others.

Both partners must have the intention to be married and must agree to be married. This agreement can be implied through actions or expressed through verbal communication. It’s important to note that simply living together does not establish a common-law marriage in Texas.

The couple must live together as husband and wife. This means that they must cohabitate and present themselves as a married couple to others. This can be demonstrated through joint bank accounts, shared bills, and other documents that show that the couple is living together as a married couple.

Both partners must hold themselves out as married to others. This means they must refer to each other as husband and wife and present themselves as a married couple to friends, family, and the community.

Is it possible to be common-law married to the same person after a divorce?

Of course, it is: To establish a common-law marriage (under Texas law, an “informal marriage”), a person must prove:

• an agreement to be married;
• that the couple is living together as husband and wife; and
• that they are representing to others that they are married.

Tex. Fam. Code § 2.401(a)(2). These three elements of a common-law marriage can be proved even after a prior divorce.

In Garcia v. Garcia, the parties divorced in 1989 but resumed living together in 1990. In 2009, the wife sued the husband for divorce. The husband claimed that the parties were divorced and had not remarried.

But the trial court, and then the Court of Appeals, concluded that the parties were married. As evidence of common-law marriage, the Court of Appeals cited the following, all of which occurred in 1990 or afterward:

• The husband admitted that he and the wife “slept together in the same room and were living together as husband and wife.”
• The couple filed joint tax returns.
• The couple signed mineral leases as husband and wife.
• The husband told the wife’s grandchildren that the couple did not need to be married in the church because they were already married.
• The husband assisted the wife in adopting and raising her grandchildren.
• The parties were registered as a family at their church.
• The parties were listed as husband and wife at the children’s school.
• The parties maintained a joint checking account to which both parties had full access.
• The parties both deposited and withdrew funds from the account.
• The parties received a tax refund which was issued to them as husband and wife and was deposited in the joint checking account.

The trial court found the parties to be married and divided their community property.

Texas Common Law Marriage FAQ

Are there any other common law marriage requirements?

Aside from the aforementioned requirements, both husband and wife must have the legal capacity to enter into a common law marriage. This means that you and your spouse must be:

• At least 18 years of age (even if their parents gave them permission);
• Not related to each other;
• Not married to anyone else;

How does the court prove the existence of a common law marriage?

The court uses factual evidence to determine the validity of a common law marriage in Texas. This means that cases are reviewed case-by-case to ensure all angles are covered.

How does a couple “agree to get married”?

Texas law states that there must be sufficient evidence to show that a couple, in agreeing to be husband and wife, intended to have a present, immediate, and permanent marital relationship. This means that simply agreeing to get married at some point in the future is not an agreement to be married. But even if there is no written document indicating your agreement to be married, your and your spouse’s actions can be used to prove such an agreement.

When are two people considered “living together” as a common law couple?

For a couple to be considered in a common law marriage, they must do more than have sexual relations under one roof. The Texas Family Code states that for a common law couple cohabitating, they must be living together as husband and wife, all while maintaining the household as any regular married would. The court does not rely on any specific number of years as proof of cohabitating.

How does a couple represent themselves as married to others?

When a couple “holds themselves out,” as married to others, this simply means they are telling others that they are married. Another example includes signing a legally binding document, such as a mortgage or personal credit application, and indicating themselves as a married couple.

Is a ceremony required for a common law marriage in Texas?

One of the unique aspects of common law marriage in Texas is that it does not require a formal ceremony. That’s right; you can become legally married without ever exchanging vows in front of a minister, judge, or any other official. Instead, a couple can establish a common law marriage in Texas simply by agreeing to be married and living together as spouses with the intent to be married.

How long must you live together to establish a common law marriage in Texas?

In Texas, there is no specific time period that you have to live together to establish a common law marriage. The law does not require a minimum number of years or months of cohabitation for a couple to be considered common law married. Rather, the court will look at the facts of each case to determine whether a common law marriage exists.

What happens if you move to another state with a common law marriage?

If you move to another state after having established a common law marriage in Texas, you will still be considered married in the eyes of Texas law. However, the laws regarding common law marriage vary from state to state.

Some states do not recognize common law marriage, while others do but have specific requirements that must be met. It’s important to research and understand the laws regarding common law marriage in the state you are moving to.

If the state you are moving to recognizes common law marriage and you meet the requirements, your marriage will likely be recognized there as well. However, if the state does not recognize common law marriage or has different requirements for establishing one, you may need to take additional steps to ensure your marriage is legally recognized.

How does a Texas court end a common law marriage?

Because a common law marriage has the same legal status of a formal marriage, common law couples who wish to dissolve their union must seek a formal divorce. There is one difference, however. The couple must prove to the court that they were in a common law marriage. The person who initiates the divorce proceedings typically has to prove the existence of the marriage.

What are the grounds for divorce in a common law marriage?

• Insupportability – This is a “no-fault” ground for divorce in Texas, which means that a divorce can be granted without proof that either spouse was at fault for breaking up the marriage. It is lso known as “irreconcilable differences” in other states;
• Confinement in a mental hospital – Either spouse has been confined in a private or state mental hospital for at least three years due to a mental disorder with a low chance of adjustment or high probability of relapse;
• Cruelty – One spouse treats the other cruelly, whether verbally, mentally, or physically, such that continued cohabitation is insupportable;
• Adultery – The spouse accusing the other of adultery must prove this ground in court;
• Felony conviction – This ground can be used if either spouse has been convicted of a felony and sentenced to prison at least one year in a state or federal prison;
• Abandonment – Can be used if either spouse intentionally abandoned the other and stayed away for at least one year;
• Living apart – The couple has lived apart without cohabitation for at least three years.

What is a Domestic Partnership Agreement?

Some Texas counties, including Travis County, accept the filing of Domestic Partnership Agreements and maintains a Registry of Domestic Partnerships. A Domestic Partnership Agreement is a document that describes the legal rights and responsibilities between two individuals of any gender in a long-term relationship. These documents are used for various purposes; For example, some employers use them to grant insurance and other benefits.

A domestic partnership agreement is a legal agreement, but it is not a marriage, a common-law marriage, or a civil union. Texas does not currently recognize any of these unions.

What is an Informal Marriage?

In Texas, a man and a woman may sign a declaration of informal marriage. An informal marriage registration is different than a marriage license. It is most similar to a “registered” common-law marriage. In a common law marriage, it is assumed that a couple is married based on what they say, the circumstances, and how they present themselves. The informal marriage agreement is a way to have some formalization for a common-law marriage. In an informal marriage, a man and a woman agree on a date for the informal marriage, and the date can be a previous date.

For example: a couple files for an informal marriage on April 10th, 2023, however, in their informal marriage certificate, they can affirm that the couple agreed to be married on February 14, 2022, a day of special significance for the couple, as long as the elements of a common-law marriage are met, which include:

1. affirming that the couple is married
2. affirming that the couple lived as husband and wife during the time claimed in the informal marriage certificate
3. affirming that the couple has represented themselves to other as married, and
4. affirming that since the date of informal marriage, neither party has been married to any other person.

If the couple separates, normal divorce proceedings are followed.