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Everything You Should Know about Common Law Marriages in Texas

Texas is one of the few states that recognize common law marriage. Under Texas law, Common law marriage, also known as informal marriage or marriage without formalities, is a legal way for couples in Texas to get married. To put it simply, it’s a union where two consenting adults become a couple without going through the process of obtaining a marriage license or having a formal marriage ceremony.

As more Texas couples cohabitate before marriage, the number of couples choosing to live under one roof without getting married altogether has also risen. But how do you know that you and your partner have just “moved in together” or are actually in a common law marriage?

In this guide, we go over some frequently asked questions about common law marriage in Texas. Be sure to review your specific situation with an experienced Austin divorce attorney with experience in common law marriages.

Question #1: What Are the Vital Elements of a Common Law Marriage?

According to Chapter 2.401 the Texas Family Code, a common law marriage must have these three elements:

  • The couple has agreed to be married;
  • The couple has agreed to live together as husband and wife;
  • The couple has represented themselves as a married couple to others.

Question #2: Are there any other common law marriage requirements?

Aside from the aforementioned requirements, both husband and wife must have the legal capacity to enter into a common law marriage. This means that you and your spouse must be:

  • At least 18 years of age (even if their parents gave them permission);
  • Not related to each other;
  • Not married to anyone else;

Question #3 : How does the court prove the existence of a common law marriage?

The court uses factual evidence to determine the validity of a common law marriage in Texas. This means that cases are reviewed on a case-by-case basis to ensure all angles are covered.

Question #4 : How does a couple “agree to get married”?

Texas law states that there must be sufficient evidence to show that a couple, in agreeing to be husband and wife, intended to have a present, immediate, and permanent marital relationship. This means that simply agreeing to get married at some point in the future is not an agreement to be married. But even if there is no written document indicating your agreement to be married, you and your spouse’s actions can be used to prove such an agreement.

Question #5 : When are two people considered “living together” as a common law couple?

For a couple to be considered in a common law marriage, they need to do more than have sexual relations under one roof. The Texas Family Code states that for a common law couple is cohabitating, they need to be living together as husband and wife, all while maintaining the household as any regular married would do. The court does not rely on any specific number of years as proof of cohabitating.

Question #6: How does a couple represent themselves as married to others?

When a couple “holds themselves out,” as married to others, this simply means they are telling others that they are married. Another example includes signing a legally binding document, such as a mortgage or personal credit application, and indicating themselves as a married couple.

Question #7: How does a Texas court end a common law marriage?

Because a common law marriage has the same legal status of a formal marriage, common law couples who wish to dissolve their union must seek a formal divorce. There is one difference, however. The couple must prove to the court that they were in a common law marriage. The person who initiates the divorce proceedings typically has to prove the existence of the marriage.

Question #8: What are the grounds for divorce in a common law marriage?

  • Insupportability – This is a “no-fault” ground for divorce in Texas, which means that a divorce can be granted without proof that either spouse was at fault for breaking up the marriage. It is lso known as “irreconcilable differences” in other states;
  • Confinement in a mental hospital – Either spouse has been confined in a private or state mental hospital for at least three years due to a mental disorder with a low chance of adjustment or high probability of relapse;
  • Cruelty – One spouse treats the other cruelly, whether verbally, mentally, or physically, such that continued cohabitation is insupportable;
  • Adultery – The spouse accusing the other of adultery must prove this ground in court;
  • Felony conviction – This ground can be used if either spouse has been convicted of a felony and sentenced to prison at least one year, in a state or federal prison;
  • Abandonment – Can be used if either spouse intentionally abandoned the other and stayed away for at least one year;
  • Living apart – The couple has lived apart without cohabitation for at least three years.

If you have further questions about common law marriage, or want to know whether you were actually in a common law marriage with your spouse, sit down for a discussion with 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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