11 Oct 2012

What exactly is common law marriage in Texas?

There are many misconceptions about common-law marriage.  This issue usually comes up when either: 1) the parties want to go their separate ways; or 2) one of the parties has died and the surviving person wants the “spousal” benefits.

In Texas, there is a three-part test to determine if the parties are married by common law, also known as informal marriage.  The legal test to determine if you have a binding informal marriage in the State of Texas  is this:

  • the man and woman must have an agreement to be married;
  • the man and woman must hold each other out to the public as husband and wife in Texas; and
  • the man and woman must live together in Texas.

All three elements must be met in order for an informal marriage to achieve legal recognition.  Interestingly, notice the words “man and woman”.  Currently, same sex marriages are not legal in Texas, whether formal or informal.  In 2005, with Governor Rick Perry’s backing, Texas voters amended our constitution defining marriage as the “union of one man and one woman”.  Same sex civil unions are also not legally recognized in Texas.  Next, notice the words “in Texas”.  In order for Texas to recognize an informal marriage, elements 2 and 3 must have occurred (or are occurring) in the Lone Star State.

The most difficult element is often the agreement to be married.  If the parties are splitting up, one side (who wants the benefits) is sure to say “Of course we agreed to be married”, while the other is most likely to say “Heck no, that’s why we never GOT married”.  Element 2 – holding each other out to the public as husband and wife, requires both parties to have represented themselves as married.  However, a court can determine this by the conduct and actions of the parties  – words do not have to be spoken.  The facts and circumstances of holding each other out are determined on a case-by-case basis. Element 3 – cohabitation, is usually the easiest element to prove.

  • An informal marriage certificate is also available and can be filed with the county clerk if both parties meet the above three-part test and sign the document.
  • In Texas, an informal marriage is not available to a person under the age of 18.
  • If one has an informal marriage – that marriage can only be dissolved by legal proceedings or the death of a spouse.