Common Questions: Starting & Ending 'Common Law' Marriage
Authored By: Texas Legal Services Center
Informal & Common Law Marriage
Q: What is required for a common law marriage to be valid in Texas?
To meet the requirments of common law marriage in Texas the parties to the marriage MUST :
(1) agree to be married
(2) After the agreement live together, in Texas, as wife and husband AND
(3) "Hold Out" or tell others that they are married.
These three requiements must be present at the same time OR you may file a declaration of informal marriage.
Declaration of Informal Marriage
A good way to have an informal marriage recognized is to file a Declaration of Informal Marriage. A couple can do this to register an already existing informal marriage. This document only recognizes an informal marraige , the three elements mentioned above must be still be present.
Q: Who Can Get Married Informally?
Each of the parties , husband and wife, must be:
- At Least 18 years of age
- Not related to each other - Family Code 6.201
- Not married to someone else already
- Members of the opposite sex.
Q: What happens if someone is still married but they meet all the requirements of informal marriage to another person?
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 date of the dissoultion of the prior marriage, rather than the original start of the informal marriage. (Caddell v. Caddel, 486 S.W.2d141 (Tex. Civ. App. Amarillo 1972)
Q: Are common law marriages recognized in other states?
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 heard that if we live together for a certain amount of time, we automatically become common law married even if we don't tell anyone. Is that true?
No. You must satisfy the three-part test listed in question number 1 to be in a common law marriage, no matter how long you have been living together.
Q: Are we automatically in a common law marriage if we have children together?
No. You must satisfy the three-part test listed in question number 1 to be in a common law marriage, even if you have had children together.
Q: Does informal marriage affect my property rights and the rights I have to my children, the same way that a traditional marriage does?
Once the common law marriage is legally established and in existence, yes- it is the same as a marriage that was established through a wedding, ceremony, or license.
Q: Can I get a protective order against an abusive common law spouse?
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.
Dissolving an Informal Marriage
Q. What happens when couples in an informal marriage separate?
A. You will want to prove that a marriage existed and then get a formal divorce. This is done in court.
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.
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 informal marriage, and/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. You should offer tesimony from witnesses as well as yourself; for example, A witness 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.