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Same-Sex Common Law Marriage in Texas

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

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

Yes. Same-sex couples in Texas now 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 by evidence that (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabitated together, in Texas, as a married couple, and 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 which 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.
 

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 (above) to be in a common-law marriage, no matter how long you have been living together. 

 

 

 

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.

 

Can informal marriages be registered?

Yes. Texas law allows registration of their 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

 

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 an LGBT family law lawyer and create written documents that clarify the situation.