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Same-Sex Common Law Marriage in Texas

Family, Divorce & Children

This article addresses common law marriage between same-sex couples in Texas. 

Learn about common law marriage, if there are any differences for same-sex couples, and the effects of Obergefell (2015) and the federal Respect for Marriage Act (2022).

Can same-sex couples enter into informal or common law marriage?

Yes. Same-sex couples in Texas can enter into an informal marriage, also known as a common law marriage. Texas allows parties in an informal marriage to hold, as their legal marriage date, the earliest date at which they satisfied all the requirements of an informal marriage.

Under the Texas Family Code, an informal or “common law” marriage may be proved with evidence that:

  • a declaration of marriage has been signed; or
  • the parties:
    1. agreed to be married, and
    2. after the agreement they cohabitated (lived) together, in Texas, as a married couple, and
    3. represented themselves to others, in Texas, to be married.

All three requirements must occur at the same time, although there is no minimum duration.

Additionally, both members of a couple must be at least 18 years old, must not be related to each other by consanguinity (as defined in Texas Family Code 6.201), and must be legally single. If either party is married to someone else, a new informal marriage does not start until the prior marriage is dissolved, regardless of the couple’s intent and behavior. 

Are common law or informal marriages recognized in other states?

Not all states have laws like those in Texas that let people 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” or informal marriage in another state because of your actions in that state, you should seek legal counsel from an LGBT+ family law attorney in the state which you are interested in. The National Conference of State Legislatures published an article discussing states that recognize common law marriages. 
Once you enter into common law marriage in Texas, it becomes a legal marriage under Texas law. Because all states recognize legal marriages from other states, if you move to a state that does not recognize common law marriage, your marriage will still be recognized.

If we live together for a certain amount of time, are we automatically common law married even if we don't tell anyone?

No, you are not. You must satisfy the three-part test listed above to be in a common law marriage.

Are we automatically in a common law or informal marriage if we have children together?

No. You must satisfy the three-part test listed above to be in a common law marriage–even if you have had children together. 

Does informal marriage affect my property rights 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. This means you will have all of the same rights and privileges while you are married and during a divorce.

Can informal marriages be registered?

Yes. Texas law allows registration of an informal marriage by filing a Declaration of Informal Marriage with the county clerk in the county of their residence. The form may be filled out in advance, but both parties must sign the form at the clerk’s office under oath.

You can find the Declaration of Informal Marriage form on the Department of Health and Human Services website as form H1057.

Can the beginning of a same-sex common law marriage pre-date the June 2015 Obergefell decision?

Yes. This is an important question that impacts determinations of separate and community property and benefits, such as pensions and Social Security. According to the Texas Department of State Health Services, “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.”

What if my same-sex partner and I had a commitment ceremony, but wish to remain unmarried? Is there a way to avoid the implication that we are in an informal marriage?

In this situation, it would be a good idea to consult with an LGBT+ family law lawyer and create written documents that clarify the situation.

How does the December 2022 Respect for Marriage Act affect same-sex common law marriage?

The Respect for Marriage Act passed by the United States Congress December 2022 replaces provisions defining marriage as between a man and a woman and a spouse as a person of the opposite sex with provisions recognizing any marriage between two individuals that are valid under state law. This federal law creates statutory protections for same-sex marriages, including common law marriages in Texas.

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