IF I LIVE WITH SOMEONE, ARE WE COMMON LAW MARRIED?

I often get calls from parties wondering if the person they’ve been living with or had a child with are now their husband or wife by common-law marriage.  Generally, you need more than just living with someone or having a child together to create a common law marriage.

What is a common-law marriage?

In Texas, a common-law marriage is an informal marriage between a man and a woman who live together, agree to be married, and hold themselves out to others in Texas as husband and wife, but they have not obtained a marriage license or participated in a marriage ceremony.

What are the requirements for a common-law marriage?

To prove a common-law marriage, a person must establish by a preponderance of the evidence that he/she has the capacity to enter into the marriage and the following requirements: (1) the parties agreed to be married, (2) the parties cohabitated (i.e., lived together) in the State of Texas as husband and wife, and (3) the parties hold out (i.e., represented) to other people in the State of Texas that they are husband and wife.  All three of these elements must exist at the same time for a valid common-law marriage to exist.  Note that all of the elements must exist in the State of Texas.  If you meet all of the requirements but you lived in Pennsylvania, then it is not a common law marriage in Texas.

What does “capacity to marry” mean?

To enter into a common-law marriage, the couple must be (1) opposite sex (but in light of the recent Supreme Court caselaw, I would argue this is no longer needed), (2) at least 18 years old, (3) not related to each other as set out in Family Code 6.201, and (4) not currently married to someone else.

What does an “agreement to be married” mean?

To prove agreement, evidence must show that the parties intended to have a present, immediate, and permanent marital relationship, and that they did indeed agree to be husband and wife.  An agreement to be married in the future, such as an engagement, is not sufficient.  However, if the parties consider themselves to be married but still plan a ceremonial wedding in the future, then they can still be common-law married.  Evidence can include things like express written agreement, testimony by one of the spouses that there was an agreement, exchanging wedding (not engagement) rings, filing taxes as a married couple, and acts such as living together and telling other people that they are married (i.e., the other two elements).

What does “cohabitation” mean?

Cohabitation, or living together, must be more than just having sexual relations under a common roof, but it is not necessary that the cohabitation be continuous.  So even if one person lives somewhere else for a period of time, if they live with the other person in Texas for a period of time, then that could be considered cohabitation for purposes of establishing a common-law marriage.  As such, there is no bright-line rule for how long the couple must cohabitate.

What does it mean to represent to others that the couple is married?

The essence of this element is that there can be no secret informal marriage – i.e., if the couple only shares with close family or friends that they are married but not to the community at large, then no informal marriage exists.   This element can be established by acts and behavior, not necessarily words, but unilateral actions by just one person will not constitute evidence that both people were representing to others that they were married.  Some specific examples of this element include representing each other as husband and wife on a signed notarized and recorded deed, naming the other party as a spouse and beneficiary in your life insurance policy, signing a credit application as husband and wife, and including the other party as a spouse on health insurance.  As such, if trying to prove “holding out”, then a party should offer testimony from as many different people as possible that the parties considered themselves as husband and wife.

How long does a common-law marriage last?

A common-law marriage begins once all of the above elements exist at the same time.  It lasts until it is dissolved by death, divorce, or annulment.  Once the informal marriage is established, later denying it existed cannot undo it.

Is there such a thing as a common law divorce?

Yes.  If a common law marriage is established, then you can divorce.

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