What is common law marriage

Many couples now choose to live together without getting married. But some worry that doing so will result in the partners inadvertently becoming informally married. These couples can rest assured that, though Texas recognizes common law marriage, a couple must expressly demonstrate their intent to marry under common law. 

On the other side of the coin, some partners who have been together for years and who assume their informal marriage is valid may worry that heirs will challenge the validity of the marriage. As husbands and wives plan for the future, they often want to ensure that their inheritance wishes will be honored. Making sure your marriage is valid is part of that process. 

If you live in Austin, Dallas, Houston, or San Antonio and have questions about common law marriage, contact The Law Offices of Kyle Robbins, PLLC. Understanding the law is the first step in determining your legal status and achieving your goals.  

What Is Common Law Marriage?

Common law marriage is a valid and legally binding way for couples to marry without having a ceremony or obtaining a marriage license. Some also refer to it as informal marriage or marriage without formalities. Texas recognizes common law marriages for both opposite-sex and same-sex couples. 

How Does Common Law Marriage Work?

Couples who wish to have a common law marriage need to take affirmative steps to demonstrate their intent. They also must have the capacity to marry. Specifically, each individual must:

  • Be at least 18 years old,
  • Be legally single, and 
  • Not be related to the other individual.

If the two people are related by blood or adoption, they cannot marry. Stepchildren and stepparents also may not agree to a common law marriage. 

Once couples satisfy the requirements described below, common law marriage works just like a formal Texas marriage. 

Requirements for Common Law Marriage in Texas

To prove that a common law marriage exists, Texas Family Code § 2.401(a)(2) requires evidence that:

  • The man and woman agreed to be married,
  • They lived together as husband and wife after making this agreement, and
  • They represented to others that they were married. 

Though the Texas Legislature has not updated the statutory language since the Supreme Court upheld same-sex couples’ right to wed in Obergefell v. Hodges, Texas also recognizes same-sex common law marriages.

Courts rely on evidence presented by the parties to determine whether sufficient facts support the existence of a marriage. For the first element, the couple need not show a written agreement to be married. But they must demonstrate that they intended to enter a present, immediate, and permanent marital relationship. Being engaged to be married in the future is not enough. 

To satisfy the second element, the couple must live together in Texas. Signing lease or mortgage documents as spouses and making joint purchases further indicates an intent to live together as a married couple. 

Finally, courts look to all other indicators that couples held themselves out to the public as married. Examples of such evidence include:

  • Wearing wedding rings,
  • Using your partner’s last name,
  • Filing joint tax returns,
  • Listing your partner as a beneficiary on life insurance and estate planning documents,
  • Regularly introducing your partner as your spouse, and 
  • Covering your spouse on your health insurance.

Raising children together, particularly if you use a joint last name or file for family benefits, also provides proof of your intent. 

How Many Years Do You Have to Live Together for Common Law Marriage in Texas?

Contrary to the popular myth that you must live together for seven years before a common law marriage is valid, there is no minimum cohabitation period required in Texas. It does not matter whether you live together for a month or 10 years. You simply must provide evidence sufficient to prove the three requirements listed above. 

Can Same-Sex Couples Claim a Marriage Date Prior to the Effective Date of the Obergefell decision?

Yes. The Supreme Court recognized same-sex marriages on June 26, 2015. However, Texas allows informal marriages to use any date applicable to the relationship. In other words, same-sex common law marriages initiated before 2015 will be legally recognized. 

Is There a Way to Formalize a Common Law Marriage?

If you decide you want proof that you are in a valid common law marriage, you may sign a Declaration of Informal Marriage and file it with the county clerk. 

Common Law Marriage Rights in Texas

Texas treats common law marriages the same as formal marriages. As a result, informally married couples have the same property and inheritance rights as other legally married couples. 

Under Texas law, all income, property, and debt acquired during the common law marriage are considered community property. Likewise, informally married couples inherit from each other just as formally married couples would when one of them dies without a will. 

Texas Common Law Marriage Divorce

Some people believe that, because they did not have to satisfy any formalities to enter a common law marriage, they do not have to take any legal steps to end the relationship. This is incorrect. To terminate a common law marriage, you must file for divorce. There is no such thing as “common law divorce.”

That being said, Texas law requires you to initiate the divorce proceedings within two years of your separation. Divorcing a common-law spouse is somewhat unusual because the party seeking the divorce first has to prove that a marriage existed. If you live separately for more than two years without doing so, the law presumes that the couple never entered into a common law marriage in the first place.  

How to Disprove Common Law Marriage in Texas

If you move in with your significant other and want to make sure your relationship is not viewed as a common law marriage, put your feelings in writing. There are no formal requirements for this document, but it is a good idea to consult with a lawyer if you want to ensure that your status is clear. Otherwise, simply clarify in writing that you intend to live together as single individuals and keep your assets separate. Then sign and date the document and keep it in a safe place.

For those who did not take this step, one party may find themselves seeking to prove in a divorce, probate, or another court proceeding that a common law marriage did not exist. To do so, this individual must demonstrate that one of the three elements of a valid marriage is lacking. No single fact will likely be conclusive. Rather, the court will look at the weight of the evidence. 

For instance, if the couple referred to each other as boyfriend and girlfriend instead of husband and wife and did not share income or expenses, it would appear they lacked an agreement to be married or to represent themselves as married. The person seeking to disprove the common law marriage could also demonstrate that the couple did not satisfy all three elements simultaneously. 

Will My Common Law Marriage Be Recognized in Other States?

If you establish a valid common law marriage in Texas, other states will recognize you as married. But you cannot create a Texas common law marriage by living together in another state. You must cohabitate in Texas at the same time you agree to be married and represent yourselves as such.

Most other states do not recognize common law as an institution. So, for example, if you satisfy all three elements while living in California or Mississippi, you will not be legally married. For this reason, if you have a Texas common law marriage and plan to move to another state, it would be wise to file a Declaration of Informal Marriage to clarify your status. 

The Law Offices of Kyle Robbins, PLLC Can Help Protect Your Interests

If you have additional questions about your rights under a common law marriage, reach out to The Law Offices of Kyle Robbins, PLLC. Many people become concerned about their relationship’s legal status when they have children and start planning for the future. It is particularly important to formalize your wishes when you have an informal marriage. If you want your spouse to have custody of the children and inherit your assets when you pass away, you do not want to worry that other heirs will challenge your marriage and go against your wishes.

Our attorneys can work with you to prepare an estate plan that provides for your family’s financial and emotional security. We take the time to educate our clients on their options and figure out each couple’s specific needs. Whether you come to one of our offices in Austin, Cedar Park, or Round Rock, or we meet you elsewhere in Texas, you will have one-on-one attention from one of our experienced estate planning attorneys. We know that planning for the future is the only way to achieve peace of mind today. And we offer flexible payment options so you can create a robust estate plan while staying within your budget. 

If you are already dealing with a common law marriage challenge, our attorneys also handle probate and estate litigation. Whatever your estate needs, contact The Law Offices of Kyle Robbins, PLLC today.