Common Law Marriage in Texas

Apr 2, 2024 | cohabitation, Communication, marriage

Texas is one of the few states that still allows common-law marriage. In the great state of Texas, common law marriage is legally referred to as “informal marriage,” but it means the same thing as common law marriage, that is, being considered married without following any of the formalities to actually get married (i.e., marriage licenses and wedding ceremonies). In TX, there are two ways to get “informally married” (we discuss these in depth below). We also touch on some real case law straight out of the Lone Star State to demonstrate how a court analyzes common law marriage cases. Let’s dive in! 


What is common law marriage, exactly? 

Essentially, a common law marriage occurs when a couple is recognized as legally married by state law despite not having a formal marriage ceremony, marriage license, or marriage certificate. For instance, consider Frank and Barb, who have lived together for many years without formally getting married. If they meet Texas’ requirements for common-law marriage, they may be entitled to certain legal rights similar to those of traditionally married couples. 


Why would someone want to establish a common-law marriage? 

The reason the doctrine of common law even exists stems from the need to protect people in relationships who have (in good faith) acted as spouses. The notion of common law marriage goes all the way back to England and colonial America. Today, it is much less common, and more and more states are abolishing it altogether. However, for those states that continue to allow common law marriages (i.e., Texas is one of them), establishing a common law marriage may be useful for inheriting assets upon one partner’s death, dividing assets in the event of a separation, and/or other marital benefits such as insurance.


How to get a common law marriage in Texas

According to Tex. Family Law § 2.401, there are two ways a couple can show they have a common law marriage (a.k.a., an “informal marriage”). Firstly, they may sign a declaration of their marriage document and file it with the clerk of court. Or, alternatively, they can demonstrate that they agreed to be married, that they live together in Texas as husband and wife, and they openly represent themselves as married to others. 

In both scenarios, the spouses must be 18 or older and not already married. And if the couple ever separates and stops living together for two years without initiating any legal proceedings to prove their marriage, it is assumed that they did not enter into an agreement to be married. 


One way to get a common law marriage in TX is to fill out a declaration of informal marriage document 

One easy way to establish your common law marriage in Texas is to fill out a declaration of marriage form with the clerk of court. This document basically says you swear that you two agree to be married on a certain date, that you live together, and you act as a married couple to your community. It also makes you confirm you two are not related, and you are not currently married to someone else. 

After you properly fill out and sign this document, you are considered legally married for all intents and purposes. You’ll need to return the document to the clerk of court so they can keep it on file as proof of your marriage. This is a super simple and quick way to establish your marriage if you never actually tied the knot formally. 


Another way to get a common law marriage in TX is to prove certain facts exist

The other way to get a common law marriage is a little bit more difficult. It involves proving to a court three elements: (1) the couple agreed to be married; (2) they lived together in Texas after agreeing to be married; and (3) they act as husband and wife to the public. 

Element 1: Agreement to marry

“[E]vidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did, in fact, agree to be husband and wife.” Small v. McMaster. But how do you prove this? Well, one way would be to have testimony from either of the partners and/or friends/family stating this was true. Other ways could be through conduct or other acts showing there was an agreement. 

Element 2: Living together in TX 

The requirement is that after the agreement to be married is made, the couple lives together in Texas as “husband and wife.” And the cohabitation need not be continuous. 

Element 3: Acting as a married couple

Acting as a married couple is another way to say that the couple was holding themselves out to be married to the public. “‘Holding out’ may be established by the conduct and actions of the parties. . . [and] [o]ccasional introductions as husband and wife are not sufficient to establish the element of holding out.” Small v. McMaster. The question turns on to whether or not the couple had a reputation for being married in their community. In other words, did Neighbor Joe and Cousin Sue think they were married?  

Texas case law about common law marriages 

Let’s look at real cases that have dealt with the question of whether or not a Texas couple has been common law married. 

A case where common law marriage was not established 

In Small v. McMaster, the court found that there was not enough evidence to establish a common law marriage. Basically, it boiled down to the couple not holding themselves out to the public as a married couple (element #3). The girlfriend in the case brought her own witnesses who testified that she and her boyfriend told some family, friends, and people they knew that they were married. However, the boyfriend’s witnesses said he never told anyone he was married to her. Plus, there was no evidence that people in the wider community saw them as a married couple. And the final nail in the coffin was that most of the things the couple did and how they acted didn’t support the claim that they acted married. Things like dating other people, not including him as her spouse on insurance, not being included as a spouse on wedding invitations from close family, etc.  

A case where common law marriage was established 

In Omodele v. Adams, the court there found that the couple did, in fact, satisfy the three-prong test to determine common law marriage in TX. There was an agreement to marry; they lived together, and they held themselves out to be married. Specifically for the first element (agreement to marry), the girlfriend gave testimony that they made an agreement to marry–which alone was enough to satisfy this first prong. In addition, there was correspondence provided showing the couple calling each other husband and wife. For the second element (living together), the couple lived together for just two years, but this was enough since Tex. Family Law § 2.401 does not specify how long they must live together as husband and wife. And finally, the third element (holding themselves out to be married) was satisfied by showing evidence that they signed off on insurance documents stating they were husband and wife.  


The bottom line 

Common law marriage, or “informal marriage” as it’s called in Texas, offers a backup way for couples to become legally recognized as married. However, there are caveats–you have to meet Texas’ three-prong test in order to do so (and/or you may have to fill out some paperwork!). Texas is one of the few states still accepting of this arrangement and the laws are constantly changing, so your best bet is to get married the “regular” way (i.e., marriage licenses and a ceremony). 


Frequently Asked Questions (FAQs) about common law marriage in Texas

We know this is a very intriguing topic, and “ya’ll” have lots of questions, so let’s discuss.

Q: What if I get common law married in another state and then move to Texas?
A: Texas will recognize other common law marriages from other states as long as they were executed properly in such state, thanks to the Full, Faith, and Credit Clause of the US Constitution. 


Q: Is there a special divorce process for people who are common law married?
A: Nope–there is no such thing as “common law divorce” in TX; it’s just regular-old divorce.


Q: Does Texas law treat common law marriages differently in the case of divorce?
A: It does not! Once a common law marriage has been established, Texas law treats this union the same as a traditional marriage. Therefore, since Texas is a community property state, all property and debt accumulated during the common law marriage will be divided equally between the parties.


Q: Do we have to live together for 5 or more years in order to be common law married in Texas?
A: No! The TX common law statute does not require a certain number of years living together to create a valid common law marriage. (Tex. Family Law § 2.401)


Q: How do I prove I have a common law marriage in Texas?
A: You will need to fill out a declaration of marriage or prove it to a court. The former is much easier, but if you and your partner are in disagreement, then you may need to establish your marriage the hard way (via court).


Q: How do I protect myself from a common law marriage in Texas?
A: Two ways to protect yourself if a common law marriage is not your intention are to refrain from representing yourself as married to your partner (i.e., introducing or referring to your partner as your spouse) and not filing tax returns as a married couple as tempting as the tax benefits may be!

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