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Common Law Marriage

Common law marriages or informal marriages have been recognized in Texas since 1847 [Russell v. Russell, 865 S.W.2d 929, 931 (Tex.1993)]. Since then, the state has rejected the necessity of rituals and other formalities to establish the marriage relationship.

Chapter 1-A, Section 3.1 of the Texas Family Code defines a “Common-Law Marriage” as a marriage between two people who:

  • Agree to be married;
  • Reside together in Texas as spouses;
  • Hold themselves out to others in Texas as spouses (i.e. both spouses are telling the world they are married, whether it’s by filing a joint tax return with a married status, telling others you are married to your spouse, or getting insurance under married status) but have not actually acquired a marriage license and participated in a marriage ceremony

But what happens when common law couples separate from each other? What happens to the property they own? The answer lies in whether a common law marriage was established in the first place. It’s best to consult with the Austin common law marriage attorney, Daniella Lyttle, but below are some general guidelines stipulated in the family law code.

Requirements for a Common Law Marriage to be Established
  • Section §2.401 (a) of the Texas Family Code states that marriage of a man and woman can be proven by evidence that:
    • (1) a declaration of their marriage has been signed as provided by this subchapter; or
    • (2) 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.
  • Section §2.401 (b) adds that common law spouses who have been separated for more than two years but have not taken action to end the marriage are presumed to have never intended to be married in the first place.
  • Section §2.401 (c) notes that anyone under 18 cannot enter into an informal marriage.
  • Section §2.401 (d) states people who are currently married cannot enter into an informal marriage with anyone who is not their current spouse

If and when a common law couple files for divorce but none of these requirements are met, their property rights during division can be compromised. The court must first see a legal establishment of a common law marriage before applying the community property laws of Texas.

So, even if John and Jane lived under one roof, got engaged, and filed joint tax returns, if they did not enter an agreement to be married, their common law marriage claim can be challenged in court.

Proving an Agreement to be Married

For starters, you and your partner can sign a ‘Declaration of Informal Marriage,’ as prescribed by the bureau of vital statistics and provided by the county clerk. This document will serve as valid proof of marriage—in the eyes of the law, you are effectively married for all legal purposes.

Note that this Declaration is not a marriage license, but only a means to record the relationship between common law spouses. It will be useful should the couple file for divorce.

Proving Representation to Others that You Were Married

The court can use any number of factors to determine whether you were holding out to others as spouses. These factors include, but are not limited to:

  • Telling others you were married
  • Using your partner’s surname
  • Filing joint tax returns
  • Signing leases and documents as spouses
  • Making conjugal purchases
  • Listing your partner as a life insurance beneficiary
  • Listing your partner in your health insurance
  • Made joint loan applications

If you have questions about whether or not a common law marriage was actually established between you and your spouse, you can sit down for a discussion with Austin common law divorce and family law attorney Daniella Lyttle of the Lyttle Law Firm. Call our offices today at (512) 215-5225, or use our contact form to schedule a consultation.

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