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When marriage is discussed, a religious ceremony and a civil proceeding may come to mind. Texas, however, recognizes an additional category of marriage—a common law marriage—what the Texas Family Code defines as an Informal Marriage. It is important to note that in Texas, there is no distinction between a Common Law Marriage and an Informal Marriage.
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What is a Common Law Marriage or an Informal Marriage in Texas?
Section 2.401 of the Texas Family Code sets out criteria which a couple must meet in order to be recognized as having a common law marriage. These criteria are as follows:
(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
- a declaration of their marriage has been signed as provide by this subchapter; or
- the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
(c) A person under 18 years of age may not:
- Be a party to an informal marriage; or
- Execute a declaration of informal marriage under Section 2.402.
(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.
In short, in order to have a valid common law marriage, there must be an agreement to be married; the couple must have lived together in this state as husband and wife (the statute is vague on what constitutes living together); and the couple must have represented to others that the marriage exists (for example, the couple must behave as a married couple in public).
What are the Implications when Divorcing?
Establishing that a common law marriage exists is monumental in Texas, especially in the event of a divorce. The Texas Family Code states, if a couple meets the criteria as having a common law marriage according to Subsection (a)(2) as stated above and the couple has ceased to live together, it is presumed by Texas Courts that no agreement to marry had existed.
Couples may choose to separate and move on as if the marriage never occurred. However, just like a formal marriage, a divorce in a common law marriage allows the Family court to deal with matters such as current and future property division of the spouses and assigning rights in child custody proceedings. These matters make it extremely important to obtain a common law marriage.
See also…Grounds For Divorce in Texas.
Attorney Robert Von Dohlen is not affiliated with this firm.
