Common Law Marriage in Texas

A lot of people think that if two people live together for a certain period of time, that creates a common law marriage. In Texas, common law marriage is known as an “informal marriage.” In an informal marriage, a man and a woman become husband and wife without getting a marriage license and having a marriage ceremony. There are certain factors that, if proven, create an informal marriage that has the same legal effect as a ceremonial marriage.

According to Section 2.401(a)(2) of the Texas Family Code, proof of informal marriage requires evidence of the following:

1. The man and woman agreed to be married;
2. The man and woman live together in the State of Texas as husband and wife; and
3. The man and woman represented to others that they are married.

There is no specific length of time that a couple has to be living with one another to be considered informally married. A couple who is considered married via an informal marriage, will have the same legal procedure in getting a divorce as would a formally married couple except that the couple in an informal marriage must first prove to the Court that they were married. The person that first files the divorce papers with the Court will have to prove that there was in fact an informal marriage.

That said, according to Section 2.401(b), if a proceeding in which the parties are married via an informal marriage is to proved is not commenced before the 2nd anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. In other words, a couple generally has two years after they stop living together to ask the Court to recognize their common law marriage. After two years have passed, the Court will presume that there was no agreement between the parties to be married. The marriage can still be proven after two years but it will be more difficult.

Some ways of proving that you were informally married are as follows:

1. Filing joint tax returns;
2. Adding a party as a dependent/spouse on their health insurance;
3. Witnesses that have heard you refer to one another as husband and wife; or
4. Apartment lease (if you have listed one another as husband and wife).

Also, important to note is that no person under the age of 18 years old can be part of an informal marriage, not even with parental consent.

For more information, contact Patricia J. Dixon (Trisha).