Common Law Marriage in Texas

Learn about common law marriage in Texas.

By , J.D. · University of Minnesota School of Law
Updated by Joseph Pandolfi, Retired Judge
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What Is Common Law Marriage?

Common law marriage is a legal concept that applies to couples who are in a relationship that has the appearance of a marriage, but hasn't been formally sanctioned by the state (such as by the issuance of a marriage certificate). A valid common law marriage typically confers both the benefits and obligations of a formal marriage.

Whether a common law marriage exists depends on a number of factors. First and foremost, a state has to acknowledge the legitimacy of common law marriages. It if does, then the validity of the marriage will hinge in large part on how the couple view the relationship, and how they act on that perception.

Does Texas Recognize Common Law Marriage?

It does, but it's in a distinct minority, as most states have now banned common law marriages. In addressing common law marriage, Texas statutes use the terms "marriage without formalities" and "informal marriage".

Texas law provides the requirements for a valid common law marriage. Under Tex. Fam. Code §2-401(a) (2), you'll have to prove three things:

  • you and your partner both agreed to be married
  • you and your partner lived together, like spouses, in the State of Texas, and
  • you and your partner have "held yourselves out" to other people as spouses, which means you represented to other people or behaved in such a way as to cause others to believe you're legally married.

In addition, you're also bound by certain laws that apply to traditional formal marriages. Both partners must be at least 18 years old. Also, neither spouse can be currently married to someone else. And, the partners can't be related to each other to a degree prohibited by law.

There are myths about common law marriage that you should be aware of. One is that you have to live together for a certain period of time. The reality is there's no minimum time period. Another is that the fact you're living together or have children together automatically makes your relationship a common law marriage. That's not the case. You have to meet all the requirements listed above.

How to Prove Common Law Marriage in Texas

The easiest way to prove a common law marriage in Texas is to complete a Declaration and Registration of Informal Marriage form. (Tex. Fam. Code §2-402.) The form was prepared by the Texas Bureau of Vital Statistics, and is a declaration (a sworn statement) that says both partners acknowledge and agree that they're in a common law marriage. You'll have to bring the form to the county clerk to be finalized and recorded. Once the form is recorded, it becomes prima facie proof of marriage, which means that the document, in and of itself, is evidence of the validity of the marriage. (Tex. Fam. Code §2-404 (d).)

Without the recorded declaration of informal marriage, proving the existence of the marriage gets more complicated. Now you'll have to convince a court that you've met the requirements listed in the previous section.

There are two primary situations in which you'll have to prove the validity of your common law marriage. One is where the relationship has failed and one or both partners want to officially end it. To do that, you'll need to obtain a divorce, just as traditionally married couples do. The other situation is where a partner dies without a will, and the surviving partner is seeking to obtain death benefits, such as an inheritance.

Of the list of requirements for a common law marriage, the most difficult to prove may be the last one—holding yourselves out as married. That's because this element is highly fact-specific. There are steps you can take to facilitate meeting your burden of proof. Some of these are:

  • opening up a joint bank account
  • using the term "spouse" when referring to each other in public
  • wearing wedding rings
  • using the same last name
  • sharing expenses and household duties, and
  • filing joint tax returns.

In attempting to prove a valid marriage, you might also need to obtain the cooperation of friends or family members who can corroborate your claims, either by submitting affidavits (if permitted) or testifying in court on your behalf.

Where the relationship has fallen apart, one very important thing to note is that under Texas law any proceeding (court case) to prove the existence of a common law marriage must be brought within two years of the date the partners separated and stopped living together. If that timeline isn't met, there's a rebuttable presumption that the partners didn't enter into an agreement to be married. Because the presumption is rebuttable, it can be challenged, but it will be an uphill climb. (Tex. Fam. Code §2-401 (b).)

Common Law vs Traditional Marriage in Texas

Once you prove the existence of a common law marriage in Texas, it's just as valid as a traditional ceremonial marriage in which the state issued a license. As mentioned earlier in this article, it confers both the benefits and obligations of a formal marriage. And, like a traditional marriage, the only way a legal common law marriage can end is by the death of one of the spouses or through divorce.

If you're in a common law marriage and seeking to end it, you'll have to go the standard divorce route. There isn't a special common law marriage divorce process. That means that all of the divorce laws imposing responsibilities and allocating rights around dividing marital property, alimony, child support, and child custody, will apply to you and your common law spouse.

The one obvious benefit of a traditional marriage is that if you have your marriage license, you can avoid the hassle of proving the existence of a common law marriage. But again, you can negate this distinction by completing the Declaration and Registration of Informal Marriage, and making sure it is recorded.

Something else to be aware of is a possible problem if you move from Texas to a state that doesn't recognize common law marriage. Although states normally reciprocate in acknowledging marriages that were valid in other states, if you have no documented proof of your Texas common law marriage, there could be an issue if you attempt to avail yourself of the new state's marriage laws. Your best bet is to consult with a knowledgeable family law attorney if you're faced with this situation.

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