Posts Tagged ‘common law marriage’

Common law Marriage in Texas

Wednesday, January 29th, 2014

By Holly R. Monk

Tne of the most misunderstood areas of law in Texas is the idea of “common-law” marriage.  Many people believe that if you have been living together for a long period of time, you are common-law married.  Not true.

As more couples live together these days, it is important to understand a common-law marriage relationship.   Common-law marriage is recognized in Texas between a man and a woman who agree they are married, live together as husband and wife, and hold themselves out to others as husband and wife.  This is also sometimes called “informal marriage.”

In order to meet the requirements of an informal/common-law marriage in Texas the man and woman must:

1)     Agree to be married;

2)     Live together as husband and wife, and

3)     Represent to others in Texas that they are husband and wife, often referred to as “holding out” to others that you are husband and wife.

All three elements must exist at the same time to establish a common-law marriage.

Proving a common-law marriage depends on the factual circumstances of each case. In making a determination of whether or not a common-law marriage exists, courts in Texas review the facts on a case by case basis.

1)     Agreement to Be Married

To prove a common-law marriage, you have to prove that there was an agreement by both people to be married. It is possible to live with someone that you are in a romantic relationship with without there being an agreement that you are married. Basically, the agreement is “we don’t need a piece of paper, we are married in our hearts.”

The case law in Texas states that there must be evidence that shows that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife. An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married.   If there is no written agreement, the actions of the couple will be used to prove that there was an agreement you are  married—or not.  If you keep telling your friends about the great wedding you are planning, then there is  no agreement that you are already married.  However, if the other two factors below are found to be true, then the agreement can be determined from the circumstances.

2)     Living Together/Cohabitation

In order to establish a common-law marriage the parties must live together in Texas as husband and wife.  It is more than just sexual intercourse, or having children together, you must be maintaining a household and doing things that are commonly done by a husband and a wife. There is no magic number for how long you must reside together in Texas in order to fulfill this requirement.

3)     Holding Out

In order to establish a common-law marriage the parties must represent to others in Texas that they are married. The case law in Texas states that the purpose of this requirement is that there can be no secret common-law marriage. No spoken words are  necessary to fulfill this requirement. The actions and conduct by each person may be enough to fulfill the requirement of holding out. For example, if you have joint bank accounts, bought property together listing yourselves as husband and wife, file joint tax returns together showing yourselves as spouses,  you are holding yourselves out as husband and wife.

If you are common-law married, then the only way to dissolve the marriage is through divorce.