Are We Married or Not?

by Doug Wright

There is a common public misconception as to what it takes to create a common law marriage. Many people believe such a marriage is created by the length of time a couple lives together. The truth is that a couple could live together for many years, even have children, and still not be married. So what does it take to create a common law marriage or, as the Texas Family Code (Chapter 2, subchapter E) calls it, a marriage without formalities?

In Texas you can establish a common law marriage two ways. The first would be to execute a declaration under §2.402 of the Texas Family Code. This is a document signed under oath by both parties that they are married and registered with the county clerk. The second is a three-pronged test requiring evidence showing: a) an agreement to be married, b) cohabitation in Texas and c) a “holding out” to others that the parties are married.

The third prong, “holding out,” is the tough one. This requires that the couple represent to others that they are husband and wife. It is not enough that one of the parties represents that they are married if the other party never holds him or herself out to be married or confirms the representation. There may be evidence that both parties have made oral statements that they are husband and wife; however, I have found that the best evidence would be a document signed by both parties. My favorite is a federal income tax return. If they check the married filing jointly box and both sign the return, they are doing so under penalty of perjury. You might also want to see if they have both signed a deed, a lease or some other legal document that declares they are husband and wife. The document must make that representation of husband and wife or marriage to be valid proof (i.e., jointly purchasing property does not provide proof without the husband and wife designation nor does having a child).

It is a rebuttable presumption that the parties did not enter an agreement to be married if a divorce proceeding is not commenced within two years from the date the parties separated and ceased living together. So, there you have it — common law divorce.

So why would a person want to prove a common law marriage? It wouldn’t really matter in a suit affecting the parent-child relationship. The marriage would not change the custody issues. It’s like everything else; it comes down to the money. With no marriage there is no community property. So if the parties acquired a lot of property during their cohabitation, one of them might want to prove that a marriage existed.