Introduction

A common question I am asked is, “What is common law marriage?” or “Are my girlfriend and I common law married?” There are a variety of factors that go into determining whether or not a person is informally or “common law” married to their partner.

What is a Common Law Marriage?

An informal or “common-law” marriage is a marriage between two people who agree to be married, live together in Texas as spouses, and hold themselves out to others in Texas as husband and wife, but who have not obtained a marriage license and participated in a marriage ceremony. Basically, if you meet the criteria, you are as married as any other couple in Texas.

How do I know if I am Common Law Married?

To enter into an informal marriage, a party must have the capacity to enter into the marriage to begin with. Assuming both parties have the capacity to marry, the parties must (1) agree to be married, (2) live together in Texas as spouses, and (3) represent to others in Texas (“hold out”) that they are married.  All three elements must exist at the same time for there to be a valid informal marriage.

How do I know if we have Capacity?

 

To have the capacity to enter into a common law marriage, the parties must be (1) at least 18 years of age, (2) not related to each other, and (3) not currently married to someone else. Legal capacity means the ability. In other words, even if all the other factors that make up a common law marriage exist at the same time, but one or both of the partners lack the capacity (i.e. under 18, related, or married to another) the common law marriage will be determined to be void.

What If I'm Currently Married?

A person who is already married, either ceremonially or informally, cannot enter into an informal marriage with another person until the existing marriage is dissolved. On the day the existing marriage is dissolved, the informal marriage will become valid if all of the factors listed above are met.

What is Meant by Agree to be Married?

The agreement to be married means that the parties intended to have a present and permanent marital relationship. An agreement to be married at some time in the future is not enough.

The following situations are examples where Texas Courts found an agreement to be married:

• undisputed testimony that the parties had “agreed to a marriage.”

• Testimony that the parties considered themselves already married, even though they planned to be ceremonially married sometime in the future.

• Man calling woman “Mrs.,” his parents referring to her as their daughter-in-law, and woman being identified as wife in loan papers.

The following situations are examples where Texas Courts did not find an agreement to be married:

• Man’s testimony that he promised to stay with woman through her illness.

• Behavior that is just as consistent with courtship as with a close marital relationship (e.g., living together, holding hands, showing affection, doing “everything together,” and taking care of each other during sicknesses).

• Man’s statement that he was engaged to woman, that she was his girlfriend, and that he did not consider them “officially married.”

What Qualifies as Living Together?

In addition to agreeing to be married, the parties must live together in Texas as husband and wife. “Living together” means living together as spouses, maintaining a household, and doing things ordinarily done by spouses. Living together or cohabitation is more than sexual relations under a common roof. There is no hard and fast rule for how long a couple must live together to meet the requirement. 

The following are examples where Texas Courts help that the couple was “living together”:

• Evidence that man and woman lived together for two and a half months in house they bought together.

• Evidence that man regularly stayed at woman’s house, even though he often returned to his former home where his children from his first marriage lived.

• Testimony that man, although employed in a foreign country, visited woman and stayed with her each time he returned to Texas and that the two of them traveled together on various occasions. 

The following are examples where Texas Courts found that the couple was not “living together”:

• Evidence that man and woman had sex only at their parents’ houses, never spent an entire night together, never moved any personal property into a common room, and never moved in together.

• Evidence that man and woman occupied separate rooms and had separate beds, even though they sometimes lived in the same house.

What is Meant By “Holding Out”?

At the same time the parties agree to be married and live together as husband and wife, the parties must represent to others in Texas that they are married. If a couple’s agreement to be married is concealed from the public, the couple is not informally married. The Court will look to the parties’ conduct and actions to determine if the couple held out as married. Additionally, actions by only one party will not be enough to prove that both parties were holding out as married.

The following are examples where Texas Courts found the couple to be holding out:

• Evidence that couple represented in a notarized, recorded deed that they were married

• Evidence that couple’s conduct and reputation in the community indicated they were married 

The following are examples where Texas Courts found the couple were not holding out:

• Evidence that woman introduced man as her husband to only two close friends and that she told only two or three others that she was married

• Evidence that woman told only close friends she was married, that couple did not celebrate the alleged marriage in any way, and that woman filed her federal income taxes as “single.”

• Evidence that man and woman introduced each other an unknown number of times as husband and wife and that man represented couple as being married in contracts

How Long Does an Informal Marriage Last?

 

An informal marriage begins when all of the elements listed above are satisfied at the same time in Texas and the parties have the capacity to marry. Like a ceremonial marriage, an informal marriage lasts until it is dissolved by death, divorce, or annulment. Once the parties are informally married, the spouses’ later denials of the marriage cannot undo it—there is no informal or common-law divorce. 

What is the Effect of a Common Law Marriage?

An informal marriage has the same legal consequences and effects as a ceremonial marriage.