Under the common law marriage doctrine, if certain conditions are met, a couple is considered to be legally married, despite not having a marriage license, a ceremony, or a marriage certificate. Texas recognizes common law marriage. But, we are unique in that Texas is the only state in the country that recognizes common law marriage — and also assumes that the property acquired by the common law married couple is community property until the date of divorce. This means that a couple who meet the conditions for common-law marriage could find themselves in divorce court dividing their assets and debts without ever having been to the altar or having been issued a marriage certificate.
So, what exactly is a common-law marriage, and how do you know if you’re in one? A common law marriage provides the same benefits and legal status to the couple as a traditional, formal marriage. Under the current Texas Family Code, a man and a woman** are considered to be legally married if the following conditions are present. First, there must be agreement to be married. In other words, the parties must intend to have a present, immediate and permanent marital relationship between them. An agreement to be married in the future is simply not enough. Second, the couple must live in Texas as husband and wife.** This is often referred to as cohabitation, and is not be confused with consummation of the marriage. Cohabitation means more than just having sexual relations under a common roof. Essentially, the couple must live together as spouses and maintain a household together.
The third element necessary to prove a common-law marriage exists is whether or not the parties hold themselves out to others as husband and wife.** In other words, they must represent to others in Texas that they have a marriage together. This must be open and transparent to the community and not just to their close friends and family. Moreover, the representations must be made by both parties.
** Does common law marriage apply to same-sex couples? Currently, the answer is unclear, but probably “yes.” The problem is that our family code specifically refers to “husband and wife” in the context of a common law marriage, and this language does not conform with the most recent United State Supreme Court ruling in Obergefell v. Hodges, 135 S.Ct. 2071 (2015) which made same-sex marriages legal throughout the country. It is presumed by many family law attorneys in Texas that the state legislature will amend the family code regarding common law marriage to cover same-sex couples. If this occurs, a same-sex common law divorce should follow the same factors described earlier in this article to establish the informal marriage.
If you are contemplating a separation or divorce from a common-law spouse, I encourage you to seek out the advice of a family law attorney to discuss your options and strategy moving forward.
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