By Julie C. Caskey

Common Law Marriage.  Many clients have misconceptions about common law marriage and the requirements to establish such a marriage in the State of Texas.  Texas is included in the handful of states who recognize a common law marriage.

Basic Requirements.For a common law marriage (referred to as an informal marriage in Texas) to be valid in Texas, the couple must meet many of the same basic requirements needed for a fomal, ceremonial marriage:

• The parties must be a man and a woman; Texas does not recognize same-sex marriage
• Thirty days must have passed since either party was divorced from a previous spouse
• Neither party may be presently married
• The parties must not be related to each other as an ancestor/descendant by blood or adoption; a  sibling by blood (whole or half) or by adoption; an aunt or uncle by blood (whole or half) or adoption; a niece or nephew by whole or half blood or by adoption; a current or former stepchild or step-parent; or cousins (son or daughter of a parent’s brother or sister, by whole or half blood or by adoption)
• The parties must be 18 years of age, unless court order has been granted giving the under-age party permission to marry, or parental consent is given in a written declaration form supplied by the county clerk.

Establishing an Informal Marriage.  Once the basic requirements outlined above have been satisfied, an informal marriage in Texas can be established in one of the following ways:

1. File a Declaration of Informal Marriage.  The parties can file a Declaration of Informal Marriage form prescribed by the Bureau of Vital Statistics and provided by the County Clerk.  The form includes information about both parties including their names, address, date and place of birth, and social security number.  Proof of age and identity must be provided, and the parties must assert that they are not related to one another as outlined above.  Further, the parties must swear and affirm that they (1) agreed to be married, (2) and after that agreement, they lived together in the State of Texas as husband and wife, and (3) represented to others in the State of Texas that they were husband and wife.
2. Satisfy a Three-Prong Test.  If a declaration is not filed, then an informal marriage can still exist as long as the three prong test described above is met.  In other words, as long as the parties meet the basic requirements, agree to be married, live together as husband and wife in the State of Texas after that agreement, and represent to others in the State of Texas that they are husband and wife, then an informal marriage exists.  An informal marriage cannot exist until the moment all three requirements have been satisfied and coexist.  The moment all three requirements are satisfied, an informal marriage exists. Note that there is no cohabitation length requirement.  Many clients mistakenly believe that the parties must cohabitate for at least six (6) months or longer to establish a common law marriage.  This is simply not the law.  In Texas, one night is sufficient, as long as the other requirements are met.

Proving an Informal Marriage.  An informal marriage may be far easier to establish than it is to prove in a court of law.  In fact, proving an informal marriage in cases where the couple has not filed a declaration can be extraordinarily difficult.  You must present evidence to the court that an agreement was made.  Parties rarely present consistent evidence on this topic.  You must present evidence that you cohabitated as husband and wife in the State of Texas.  And, you must show that you represented to others that you were husband and wife.  This may be done through contracts you may have signed as husband and wife, income tax returns that were filed jointly, or through the testimony of eyewitnesses who can claim that you referred to or introduced one another as husband and wife.  In order to avoid the difficulties of having to prove the existence of an informal marriage, it is often recommended that a couple file a declaration.  However, every circumstance is different, and before taking any legal action, it is always advisable to speak with an attorney.

Common Law Divorce.  Many clients believe that if the marriage is informal, the divorce can also be accomplished in this manner.  In Texas, however, once a marriage has been established–either through a declaration, by meeting the three-prong test, or ceremonially–a formal divorce is required to dissolve the marriage. Parties cannot simply cease cohabitating, or cease holding themselves out as husband and wife to end the marriage.  And, if a common law marriage has been established, and no formal divorce obtained,  a party who marries another commits bigamy. For more information about the divorce process in Texas, see my article here.

Julie C. Caskey is a family law attorney with the law firm of Garg & Associates in The Woodlands, Texas.