A Common Law Marriage is where you are considered married, but you don’t have a marriage certificate to prove it. In Texas it is called an ‘informal marriage’. It requires that you and your ‘spouse’ “hold yourself out” as being married – meaning that you both are telling the world that you are married. Examples including: filing a joint tax return with a married status; referring to yourselves as married to others; and signing up for insurance as married.
A Real Life Example
Ignacio and Stella met ten years ago. They were introduced to one another by mutual friends. Ignacio owns a trucking company and Stella owns a beauty salon. They both own their own homes.
Ignacio is a free spirit. He usually works 16 hours a day. In his free time, he likes to watch movies and fish. Stella is a hard worker. She built her business from the ground up. She normally works about 12 hours a day. They don’t have any children.
A few months after they met, Stella moved into Ignacio’s home in Fresno, Texas. At first, everything was great. Ignacio and Stella enjoyed one another’s company. Stella assumed the day-to-day tasks of cooking and cleaning and maintaining the overall upkeep of Ignacio’s house while Ignacio paid for all of the bills in the home. Stella continued to pay her house note as well.
For the past three years, Ignacio and Stella have talked about getting married and making things, “right.” Ignacio gave Stella an engagement ring and they talked about hosting a wedding ceremony. They even filed joint tax returns.
Last month, Stella met someone new. She now wants to break up with Ignacio but she wants to receive alimony. Can she? The answer would depend on whether or not Ignacio and Stella were in a common law marriage. Are they in a common law marriage based on what we know so far about them? Probably not. But, the final answer would depend solely on the totality of their circumstances. Furthermore, does Texas even recognize common law marriages? Let’s discuss the answer to that question a little more below.
Does Texas Recognize Common Law Marriages?
The short answer is yes. Texas does recognize common law marriages. In Texas, a common law marriage is called an informal marriage. However, certain requirements must be met in order for a common law marriage to be established. If all of the requirements are not met, then, if and when the couple separates or divorces, their property rights may be affected.
Can you file for a divorce if you are informally married in Texas? Yes. Often times, you can do it by yourself. However, some situations may require the assistance of an attorney. We will discuss how common law marriages are created in Texas below.
So how are informal marriages created in Texas? Informal marriages are created when all of the following takes place:
- The couple entered into an agreement to be married; and
- The couple held themselves out to others that they were married; and
- The couple lived together in Texas.
Moreover, according to the Texas Family Code, Section 2.401, a common law marriage or an informal marriage is one that exist if all of the following factors are present:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
It is important to be clear on whether or not a common law marriage has been established because once a common law marriage has been created, it will have an effect on property distribution if and when a couple ever decides to get divorced.
Keeping Ignacio and Stella in mind, have they satisfied all of the requirements that are needed to establish an informal marriage in Texas? No. Let’s discuss why they haven’t formed an informal marriage. For starters, they had an agreement to be married.
However, they didn’t have a clear understanding that they were actually married. Next, Ignacio and Stella held themselves out to others that they were married. That requirement was fulfilled because they filed joint tax returns. Also, they lived together in Texas. Although Ignacio and Stella satisfied two of the requirements to form
Let’s move on and talk about how to go about challenging a claim that a common law marriage exist.
Challenging A Common Law Marriage Claim
Can a claim that a common law marriage exists be challenged? Yes. This typically happens when someone files for a divorce without ever getting a marriage license. To illustrate this a bit more, let’s change some of Ignacio and Stella’s circumstances.
Let’s say that Ignacio and Stella agreed that they were already married and that they intended on planning a church ceremony to celebrate their agreement. They told family and friends that they were married and they lived together in Fresno up until last month when Stella called it quits.
Now are Ignacio and Stella in a common law marriage? Yes. All of the requirements have been met to form a common law marriage. Can Stella or Ignacio file for a divorce and seek alimony or a property settlement? Probably so. However, we won’t concern ourselves with issues of alimony or property settlements now.
Let’s discuss how to challenge a claim that a common law marriage exist. Based on these facts alone, can Stella or Ignacio challenge the existence of their common law marriage? Probably not. The Texas Family Code provides specific provisions on how to go about challenging a claim that a common law marriage exist.
Specifically, pursuant to the Texas Family Code, Section 2.401, If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
Furthermore, a person under 18 years of age may not: be a party to an informal marriage; or execute a declaration of informal marriage under Section 2.402.
Moreover, a person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.
For an example of how this works in real life, see Eris v. Phares, 39 S.W.3d 708, 710 (Tex. App. 2001) [ Where appellant testified she and appellee did not agree before the closing that he would retain an interest in the house he owned after she purchased it. Appellee stated that appellant told him they did not have to be married to be married. After that conversation, appellee testified, he believed that they were married. The court found that appellee’s testimony was more than a scintilla of direct evidence that the two agreed to be married.
The court held that the evidence was factually sufficient to support a finding of an agreement to be married. However, the court held that the evidence was factually insufficient to support the required element of common-law marriage that appellee and appellant represented to others that they were married before January 30, 1997. Thus, the court reversed the trial court’s judgment.]
Also, see In re Marriage of Farjardo, No. 14-15-00653-CV, 2016 Tex. App. LEXIS 8514, at *1 (App. Aug. 9, 2016) [Where the wife presented evidence that the parties lived together from 2000 to 2012, had four children together, and submitted tax returns in 2004, 2006, and 2007, which had her listed as the husband’s spouse; -The husband’s ceremonial marriage to another woman in 2005, although presumed valid under Tex. Fam. Code Ann. § 1.102, also did not negate the elements of a prior common-law marriage to the wife.]
Declaration of Informal Marriage
Moving on, let’s talk about a declaration of informal marriage. What is a declaration of informal marriage? A declaration of informal marriage is a document that can be filed with the county clerk that evidences a couples intent to be married. It is not a marriage license. It simply allows a couple the opportunity record their relationship. It may be helpful if a couple divorces without ever receiving a marriage license.
According to the Texas Family Code, Section 2.402, a declaration of informal marriage must be signed on a form prescribed by the bureau of vital statistics and provided by the county clerk. Each party to the declaration shall provide the information required in the form.
Texas recognizes common law marriages. In order for a common law marriage to be established in Texas, a couple must agree that they are married, hold themselves out to be married, and live with one another in Texas. A common law marriage can end in divorce. The parties may file for divorce themselves. However, if there is a question of whether or not a common law marriage existed, the parties may want to contact an attorney.