Informal (Common Law) Marriage
COMMONLY ASKED QUESTIONS
Q. What are the requirements for a common law marriage to be valid in Texas?
A. Before 1989, two unmarried people could become common law husband and wife by merely agreeing to be married (which did not have to be actually stated), living together in Texas as husband and wife, and representing to others that they are married. The agreement to be married could be inferred by the other two factors. Minors could become common law married with their parents' consent.
After 1989 the rules changed somewhat. Now, two unmarried persons can either
1. Complete, sign, and record a declaration of their marriage with the County Clerk
- or -
2. Satisfy the following three-part test:
a. Agree to be married (this cannot be inferred from b. and c.);
b. Live together in Texas as husband and wife; and
c. Represent to others that they are married.
Q. My common law husband and I have been living in Texas and now want to validate our common law marriage so that it is legally recognized. How do we do that?
A. If you have not completed, signed, and recorded a declaration of marriage, you can get a copy of this form and record it. It is available at your county clerk's office.
Q. Can minors enter into a common law marriage?
A. Prior to 1997 the answer was yes, with parental consent. All such marriages are valid. After 1997 the answer is no, even with acknowledged parental consent. Persons under the age of 18 cannot register an informal marriage. The attempted informal marriage between two minors, or one adult and one minor is null and void.
Q. What happens if one party to an informal marriage is still married at the time of entering into the informal marriage?
A. If either party to the informal marriage is married, the attempted informal marriage is void. It can be validated if the prior marriage is dissolved and thereafter the parties continue to live together as husband and wife. This will create a valid marriage that dates back to the original date of the commencement of the informal marriage if all the rules for creating an informal marriage are met after the prior marriage is dissolved.
Q. Are common law marriages recognized in other states?
A. Not all states have laws like those in Texas which allow persons to marry legally without going through a licensing procedure and marriage ceremony. If you are considering moving to another state, or if you think you may have entered into a common law marriage in another state because of your actions in that state, you should seek legal counsel from a family law attorney in the state which you are interested in.
Q. I have heard that if we live together for a certain period of time, we are automatically in a common law marriage whether or not we tell anyone we are married. Is that true?
A. No. You must satisfy the three-part test described earlier in this brochure to be in a common law marriage, no matter how long you have been living together.
Q. If we have children together, are we automatically in a common law marriage?
A. No. You must satisfy the three-part test described earlier in this brochure to be in a common law marriage, even if you have had children together.
Q. He has introduced me as his wife, although I have not introduced him as my husband. We have not taken any other actions that would hold us out to the world as being married. Are we in an informal marriage?
A. It depends on whether you tried to correct the impression that you were married. If you did, you may have some argument that you had not agreed to be married. But if you knew that you were being introduced in this fashion and did nothing to correct the impression that you were married, you may well be in an informal marriage.
Q. Do we have to hold ourselves out to the world consistently as husband and wife in order to be in an informal marriage?
A. No. Even one instance of publicly declaring yourself married can be sufficient to place you in such a marriage. Of course, if you have recorded a declaration of your marriage, you are in an informal marriage no matter what you tell the world.
Q. Does being in an informal marriage have the same legal effect as being in a marriage where you had a license and a ceremony - for example, with regard to community property and child custody and support?
A. Once the common law marriage is legally established and in existence, yes.
Q. Can I get a protective order against an abusive common law spouse?
A. Yes, if you are in or have been in a household with a violent person and there are recent incidents of violence or serious threats of violence. Being in an informal marriage does not prohibit you from requesting a protective order.
Q. What happens when couples in an informal marriage separate?
A. If there have been children, or if property and debts remain undivided, you will want to prove that a marriage existed and then get a formal divorce. This is done in court. The rules on proving that there was a valid marriage depend on when the couple separated.
1. Common law spouses who separated prior to 1989 continued to be considered married and needed a divorce to end the relationship.
2. Couples who separated from an informal marriage between September 1, 1989 and September 1, 1995 must claim the validity of their marriage within one year from the date of separation, or the marriage will not be recognized. After one year has passed, it is not possible to claim that a valid marriage existed.
3. Couples who separated from an informal marriage after September 1, 1995, and remain separated for 2 years are presumed to not have been married, but they can go back and prove that they did have a valid marriage at any time.
The burden of proving that there was a valid marriage is on the person who wants to establish that a marriage existed. Both partners in an informal marriage are responsible for debts and for the care and support of children of the marriage. It is therefore important that you discuss the ending of this marriage with an attorney. Even if you are in category 2 above, and the time has expired for you to claim that there was a marriage so you can get a divorce, other legal steps can be taken to get orders for payment of child support and visitation for children of the marriage.
Q. If I end up going to court to prove that I had a valid informal marriage, what will I need to show?
A. You will need to show your recorded declaration of marriage, or prove the three requirements of the informal marriage as stated at the beginning of this brochure. In order to prove the three requirements, you must show evidence on each point. Your own testimony can be evidence; for example, you can testify that you and your common law spouse agreed to be married and that you introduced him as your husband in social situations. In addition, you can ask the court to consider any documents, which show that you and your partner held yourself out to the world as being married. Samples of these types of documents include leases signed as husband and wife, tax returns filed jointly as a married couple, and insurance policies listing one person as the other person's spouse.