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Answering Your Questions Concerning Common Law Marriage

What is common law marriage? A common law marriage occurs when a man and woman are considered legally married without obtaining a marriage license or engaging in a marriage ceremony. Once properly established, a common law marriage is as legally valid as a traditional marriage.

Where did common law marriages come from? Actually, “common law” marriages preceded “legal” marriages by thousands of years. According to recorded history, men and women have been getting married for some 5,000 years. Government sanctioned marriages have only been around for the last 500 years or so, during which state governments and the then dominant Roman Catholic church began to require officially sanctioned marriages.

How is a common law marriage properly established? In order for a relationship between a man and woman to be considered a common law marriage in the state of Texas, the parties must do three things:

  1. Agree to be married
  2. Live together as husband and wife
  3. Hold themselves out as being married

What does “hold themselves out as being married” mean? There are a number of ways to do this, including:

  • Introducing yourselves to others as husband and wife and telling people you are married
  • Having a joint checking account or credit card
  • Co-signing rental agreements
  • Filing joint tax returns or listing each other as “spouse” on legal documents
  • Wearing wedding rings

Is a couple that has lived together for over seven years in Texas common law married? No, the length of time a couple has cohabitated is not a determining factor in a Texas common law marriage.

If a cohabitating couple has a child or children in Texas, are they common law married? No, having a child or children is not a determining factor in a Texas common law marriage.

Can anyone obtain a common law marriage? No. Each party to a Texas common law marriage:

  • Must be at least 18 years of age
  • Must not be married to someone else
  • Must not related be to each other (Texas Family Code 6.201)

Are common law marriages in Texas recognized in other states? In principle, yes. According to the constitution, all legal contracts in one state are typically recognized as valid in all states. Marriages are contracts, both licensed and common law. However, common law married couples relocating to another state from Texas would be wise to consult with lawyer in that state, whether or not that state recognizes common law marriages.

Does a father of a child in a legitimate common law marriage in Texas have parental rights and property rights? Yes, parents in a common law marriage have exactly the same rights as parents married in a religious or civil wedding ceremony.

How does a common law marriage end? Ending a common law marriage requires a legal divorce, just as in a ceremonial or civil sanctioned marriage. Should a partner in a common law marriage remarry without a divorce, they would be guilty of bigamy. A unique factor of a divorce in a common law marriage is one party may claim a common law marriage never existed, perhaps to avoid spousal support. In these cases, the burden is on the other spouse to prove a common law marriage existed. There is a statute of limitations; if the couple go their separate ways, a party wishing to prove that the relationship was a common law marriage should file a divorce case within two years alleging that a marriage existed. Otherwise, it becomes a rebuttable presumption that there was no marriage.

Can a gay or lesbian couple be common law married in Texas? In October 2015, a Travis County, Texas, probate judge signed a judgment acknowledging a same-sex couple met the legal requirements to be considered married even though their eight-year relationship did not include a marriage license. We would suggest gay or lesbian couples consult with a local attorney.

There is yet another aspect to this question. Same-sex couples that never had to worry about being accidentally married should now be concerned by virtue of having referred to each other as spouses and lived together in Texas. In theory, one participant in such a relationship could seek a legal divorce, spousal support, and child custody and support, should there be children. While the other party might argue no common law marriage existed, if they lived together and represented themselves as spouses, the testimony of only one partner that they agreed to be married is usually sufficient. A common law marriage in Texas can only end by a legal divorce or death.

For answers to all of your divorce questions, contact our law office at 512-436-0826 or toll-free at 866-369-3211.