Common-law marriage is recognized in Texas between a man and a woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife. Spouses that have a common-law marriage have not obtained a marriage license and have not participated in a marriage ceremony.
As more and more people get away from the traditions of formal ceremonial marriages, it becomes more important to understand when and how you could find yourself in a common-law marriage relationship. Over the next few weeks I will be discussing the definition and requirements to prove a common-law marriage in Texas, the top 10 ways to know if you are likely involved in a common-law marriage relationship, and the legal effects of a common-law marriage.
Today more and more couples are cohabitating prior to marriage, which is one element of common-law marriage in Texas. There are many misconceptions about common-law marriage. The most common misconception being that living with someone alone is enough to prove a common-law marriage relationship. That is not the case in Texas, since another element that must exist to prove a common-law marriage is that there was an agreement by both people to be married. It is possible to live with someone that you are in a romantic relationship with without there being an agreement to be married.
In order to meet the requirements of an informal/common-law marriage in Texas the man and woman must:
1) Agree to be married;
2) Live together as husband and wife, and
3) Represent to others in Texas that they are husband and wife, which is often referred to as “holding out” to others that you are husband and wife.
All three elements must exist at the same time to establish a common-law marriage.
In addition to meeting the above requirements, you must also prove that both husband and wife have the capacity to enter into the marriage. In the state of Texas to have the capacity to enter into a common-law marriage, you must be members of the opposite sex, you must both be at least 18 years of age or older, you cannot be related, and you must not be currently married to someone else. If you can fulfill these requirements, then you know have the capacity to enter into a common law marriage.
Proving a common-law marriage depends on the factual circumstances of each case. In making a determination of whether or not a common-law marriage exists, courts in Texas review the facts on a case by case basis.
1) Agreement to Be Married
To establish a common-law marriage the parties must agree to be married. The case law in Texas states that there must be evidence that shows that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife. An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married. If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.
2) Living Together/Cohabitation
In order to establish a common-law marriage the parties must live together in Texas as husband and wife. The requirement of living together for purposes of fulfilling this element of a common-law marriage requires more than just sexual intercourse under the same roof. The case law in Texas states that in order to prove cohabitation you must be living together as husband and wife, and you must be maintaining a household and doing things that are commonly done by a husband and a wife. There is no magic number for how long you must reside together in Texas in order to fulfill this requirement.
3) Holding Out
In order to establish a common-law marriage the parties must represent to others in Texas that they are married. The case law in Texas states that the purpose of this requirement is that there can be no secret common-law marriage. Spoken words are not necessary to fulfill this requirement. The actions and conduct by each person may be enough to fulfill the requirement of holding out.
Next week I will be discussing the top 10 ways to know if you are likely involved in a common-law marriage relationship, and the legal effects of a common-law marriage in Texas.