Common Law Marriage
Hardly a week goes by that I don’t get some version of “We have lived together for (fill in number) of (fill in months or years). That means we are common-law married, right?”
Common-law or informal marriage has been around in Texas for many, many years. My personal theory is that it was something the first settlers felt they needed out on the frontier since they didn’t necessarily want to wait around months or years for the next preacher to show up. That’s as good a theory as any, I suppose, but I don’t insist on it. At any rate, informal marriage has existed here for a long time and has become somewhat mythological. People seem to believe it’s out there, but nobody has actually seen one.
In the current Texas Family Code, informal marriage can be found in Section 2.401. To have a common-law marriage a couple must: 1. agree to be married; 2. after the agreement, live together in this state as husband and wife; and 3. represent to others that they are married. These have been the requirements for as long as I have been practicing law. The Family Code also permits a couple to sign and file a declaration of marriage at the County Clerk’s office to claim and prove a marriage. Two prohibitions apply – no one under 18 need apply (marriage is a contract after all) and you can’t have an informal marriage if you are already married to someone else (no double dipping).
An informal marriage is just as legally binding as a ceremonial marriage and can only be ended by a judicial proceeding. Sometimes, this turns into a two-step process. The petitioner claims the couple is married and has the burden to prove they are married and then prove that they need a divorce. The respondent, in the meantime, claims they were never married and so can’t be divorced. These cases are all fact specific. The court can consider whatever evidence the parties can put forward to support their positions. Generally, I find that things like the length of the relationship, whether there are children, how often the couple has bought things together, and whether they filed taxes jointly make good evidence. Also, judges will sometimes look for a wedding ring. I have talked to judges who are of the opinion that filing a joint tax return claiming to be married will be sufficient to find the elements of agreement and representation. I suppose that makes sense. The couple is either married or committing tax fraud, take your pick.
In any case, common law marriage is real, it is legal and if you want to get out of it you need to talk to a family law lawyer.