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Common law marriage

What Is a Common-Law Marriage?

Common-law marriage is a legal concept that applies to couples who are in a relationship that is like a marriage but hasn’t been formally recognized by the state, such as through a marriage certificate. Texas is one of a few states in the United States that legally recognizes common-law marriage. In Texas, a common-law marriage – also known as an informal marriage or marriage without formalities – is officially recognized and codified in the Texas Family Code, Section 2.401. Contrary to popular folklore, Texas law does not require a common-law married couple to have been together for a certain length of time before they can qualify as married.

Establishing a Common-Law Marriage in Texas

In order to establish a legally valid common-law marriage in Texas, couples must provide evidence for all of the following conditions:

  1. They both agreed to be married; and
  2. After the agreement, they lived together in Texas as husband and wife; and
  3. They represented to others that they were married.

Couples must meet all three conditions simultaneously to establish a common-law marriage in Texas. They must also comply with all other applicable provisions of the Texas Family Code, including the requirement that both parties be at least 18 years old, are not related to each other, have the mental capacity to enter into the marriage, and are not already married to anyone else, among other restrictions. Same-sex common-law marriages are now recognized in Texas as well. You can also take steps to make an informal marriage “official” by filing a Declaration and Registration of Informal Marriage at the county clerk’s office. A family law attorney can help you with this process.

A family court will use factual evidence to determine the validity of each common-law marriage on a case-by-case basis. Evidence of an agreement to be married can include a written document but is more often proven through the actions of the common-law spouses. An agreement to get married in the future cannot establish a marriage; therefore, if two people are engaged, then they cannot be common-law married.

Living together means more than just spending the night together on occasion; a couple must be living together as husband and wife maintaining a household as married couples do. Proof of holding themselves out as married to others can come in the form of testimony that they told others they were married or via a legally binding contract that was signed as husband and wife such as a mortgage. Spoken words alone cannot prove the third prong of the common-law marriage test, but the actions and conduct of each party can support it. Other means of proving that a common-law married couple held themselves out as married can include opening a joint bank account, wearing wedding rings, filing joint tax returns, and more.

Ending a Common-Law Marriage

While there is common-law marriage in Texas, there is no such thing as a common-law divorce. A Texas common-law marriage has the same status as any other legal marriage; therefore, ending one must be accomplished through a divorce (or an annulment). The only difference in the divorce process between common-law and formal marriage is that for a common-law marriage to begin the divorce process, the marriage’s existence first has to be proven to the court. The person who initiates the divorce proceedings typically has to prove the existence of the marriage. The law presumes no marriage exists unless and until one common-law spouse files suit to prove the marriage before the second anniversary of the couple’s separation if they are seeking a divorce.

Determining the official date that a common-law marriage began is much trickier than it is with formal marriage. This date is crucial in divorce proceedings because it will help determine how property is classified and divided. Since Texas is a community property state, any assets and debts accumulated from the date of marriage until the date the divorce is finalized will be subject to division. In addition, a common-law marriage dissolving through a divorce can still impose responsibilities regarding alimony, child support, and child custody, among other legal obligations.

Brazoria County Marriage and Divorce Lawyers

If you or someone you know is in a situation where a relationship has ended and there was no formal marriage, it is very important to seek legal counsel. In Texas, a common-law marriage affords spouses the same rights as a formal marriage. A family law lawyer from Terry & Roberts can explain how the law affects your family and guide you to protect your rights. To schedule a consultation, contact us today. Our Brazoria County, Texas family law attorneys are ready to help.

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