Common Law Marriage Explained

One of the most common misunderstandings about Texas family law involves informal or “common law” marriages. Many people believe that after you live together for a certain period of time you automatically become married, even if neither party wants to be. This is not true in Texas, nor in any other state that I am aware of.

How Can You Get Married Without a Wedding?

It is possible to become married without the usual requirements of obtaining a marriage license, waiting at least 72 hours and then having a wedding ceremony. Texas Family Code Section 2.401 and 2.402 provide two alternative mechanisms for a couple to become married. The first is rather straight forward: you both go to the County Clerk’s office and sign a sworn document called a “Declaration and Registration of Informal Marriage.” This document essentially states that the two of you have lived together, have agreed to be married, and have held each other out to others as husband and wife. Apparently, Texans rarely take advantage of this provision as there are very few marriages based on this document.

The much more common way that people become “common law” married is under Section 2.401. Typically this issue gets raised and is disputed in a contested case in family court after a couple has separated, with one party alleging a marriage and the other party denying it. The elements that must be proven are the same as those listed in the 2.402 Declaration document: a) cohabitation, b) agreement to be married, and c) they held each other out as husband and wife.

Common Law Marriage Requires Proof of the Three Elements

The cohabitation element is usually quite easy to prove. The agreement issue is usually a swearing match, with one side claiming a discussion and decision was reached and the other party denying it. The case usually hinges on the “holding out” issue. A couple of ways that common law marriages are proven include when one party puts the other on their health insurance coverage as a family member or if they filed joint tax returns. In either scenario a common law marriage existed unless the parties committed fraud.

Generally, common law marriages are difficult to prove but when sufficient assets are at issue and the parties have lived together for a lengthy period of time it is not uncommon to see a dispute develop and for litigation to arise when the couple separates.

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Scott Morgan is Board Certified in Family Law by the Texas Board of Legal Specialization. He has practiced family law since 1994 and is the founder of the Morgan Law Firm which is dedicated exclusively to representing divorce and family law clients in the Houston and Austin areas.

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