As a divorce attorney in Dallas, Texas, questions are common regarding whether a person needs a divorce if they have a common law marriage. Texas is one of the few states that continues to recognize common law marriage, which Texas law formally refers to as “informal marriage.” Despite common misconceptions, common law marriage is not something that automatically occurs simply because two people live together for a long period of time. Instead, Texas imposes specific statutory requirements that must be met before an informal marriage exists. When those requirements are satisfied, a common law marriage is legally identical to a ceremonial marriage, carrying the same rights, obligations, and consequences—particularly in the areas of divorce, property division, and inheritance.
Understanding common law marriage in Texas is critically important because many people unknowingly enter into—or mistakenly believe they are protected by—an informal marriage. The legal consequences can be profound, especially when a relationship ends or one party dies. This explanation outlines the legal definition, elements, proof, defenses, and practical implications of common law marriage under Texas law.
Legal Definition of Common Law Marriage in Texas
Texas recognizes informal marriage under Texas Family Code § 2.401. The statute provides two ways an informal marriage may be established:
- By filing a Declaration of Informal Marriage with the county clerk; or
- By proving the existence of an informal marriage through conduct, without filing a declaration.
The vast majority of common law marriage disputes arise under the second method—where no declaration exists and the parties’ conduct is examined.
Under Texas Family Code § 2.401(a)(2), an informal marriage exists if the parties:
- Agreed to be married;
- After the agreement, lived together in Texas as spouses; and
- Represented to others that they were married (often called “holding out”).
All three elements must be proven. Failure to establish even one element defeats the claim.
Element One: Agreement to Be Married
The cornerstone of a Texas common law marriage is an agreement to be married. This agreement does not have to be in writing, nor does it have to be expressed in formal language. It can be proven through words or conduct. However, it must be a present agreement, not a future intent.
For example:
- “We are married” supports an agreement.
- “We will get married someday” does not.
Courts distinguish sharply between a present agreement to be husband and wife and a promise to marry in the future. Even long-term cohabitation or having children together does not substitute for this requirement.
The agreement can be inferred from conduct, but Texas courts require evidence showing both parties mutually intended to be married—not merely committed, engaged, or exclusive.
Element Two: Living Together in Texas as Spouses
The second element requires that the parties cohabited in Texas as spouses after the agreement to be married. Importantly:
- The cohabitation must occur after the agreement.
- The cohabitation must occur in Texas.
- The parties must live together as spouses, not merely as roommates or romantic partners.
There is no minimum time requirement. A common law marriage can theoretically arise quickly if all elements are satisfied. Conversely, living together for decades does not create a marriage absent the other elements.
Temporary separations do not necessarily defeat this element, but prolonged periods of separate residences may undermine a claim that the parties lived together as spouses.
Element Three: Holding Out as Married
The third element—often the most litigated—is representation to others that the parties are married. Texas courts refer to this as “holding out.”
Holding out requires consistent and public representations that the parties are married. Examples of evidence that may support holding out include:
- Introducing each other as husband or wife
- Filing joint tax returns as married
- Listing a partner as a spouse on employment or insurance documents
- Using the same last name
- Social media posts identifying the relationship as a marriage
Conversely, evidence that undermines holding out includes:
- Referring to each other as boyfriend or girlfriend
- Filing taxes as single
- Denying marriage on official forms
- Maintaining separate finances while representing single status
Texas courts emphasize consistency. Sporadic or private statements are usually insufficient. Holding out must be public and recognizable to the community.
Burden of Proof and Evidentiary Standards
The party asserting a common law marriage bears the burden of proof. The standard is preponderance of the evidence, meaning it is more likely than not that the marriage existed.
Because informal marriages are often proven retrospectively—during divorce or probate proceedings—courts closely scrutinize credibility, documentation, and corroboration. Self-serving testimony alone is often insufficient without supporting evidence.
Two-Year Presumption Against Informal Marriage
Texas Family Code § 2.401(b) creates a powerful statutory presumption:
If a proceeding to prove an informal marriage is not commenced within two years after the parties separate, the law presumes no marriage existed.
This presumption is rebuttable, but it significantly raises the evidentiary burden. The longer a party waits after separation, the more difficult it becomes to establish the marriage.
This provision prevents stale claims and discourages opportunistic assertions of marriage years after a relationship ends.
Informal Marriage vs. Ceremonial Marriage
Once established, a common law marriage is legally identical to a ceremonial marriage. There is no “lesser” status. The consequences include:
- Divorce is required to dissolve the marriage
- Community property laws apply
- Spousal support and maintenance may be available
- Inheritance rights attach
- Spousal privileges apply in legal proceedings
There is no such thing as a “common law divorce.” If a common law marriage exists, it must be terminated through a formal divorce decree.
Property Rights and Community Property
Texas is a community property state. If a common law marriage is proven, all property acquired during the marriage is presumed to be community property unless proven otherwise.
This can dramatically alter property rights. A person who believed they were simply cohabiting may discover that assets acquired during the relationship are subject to division in divorce.
Similarly, debts incurred during the marriage may be community obligations.
Common Law Marriage and Inheritance
Common law marriage frequently arises in probate disputes. If one partner dies intestate (without a will), a surviving spouse has substantial inheritance rights.
A person asserting common law marriage may seek:
- A share of the estate
- Homestead rights
- Family allowance
- Exempt property
Because probate disputes often involve competing heirs, courts carefully examine claims of informal marriage, especially when the deceased previously represented themselves as unmarried.
Common Defenses to a Common Law Marriage Claim
Common defenses include:
- No agreement to be married
- No holding out
- Inconsistent representations of marital status
- Failure to meet the two-year deadline
- One party lacked capacity to marry (e.g., already married)
Capacity is critical. A common law marriage cannot exist if either party was legally married to someone else at the time.
Myths and Misconceptions
Several myths persist about common law marriage in Texas:
- Myth: Living together for seven years creates a marriage.
False. There is no time requirement. - Myth: Having children together creates a marriage.
False. Children are not determinative. - Myth: Common law marriage is automatic.
False. It must be proven. - Myth: You can just “walk away.”
False. Divorce is required if a marriage exists.
Practical Advice
Because informal marriage hinges on conduct and representation, people who do not intend to be married should be cautious about how they describe their relationship. Conversely, those who believe they are married should understand that legal recognition depends on proof.
Clear documentation, consistent representations, and timely legal advice are essential in avoiding unintended consequences.
Conclusion
Common law marriage in Texas is a powerful legal doctrine with far-reaching implications. While it offers flexibility by recognizing non-ceremonial marriages, it also creates significant risk when parties misunderstand the law. The three statutory elements—agreement, cohabitation, and holding out—must all be satisfied, and the burden of proof rests squarely on the party asserting the marriage.
Ultimately, Texas treats informal marriage with the same seriousness as ceremonial marriage. Whether in divorce, probate, or property disputes, a proven common law marriage carries the full weight of Texas family law. Understanding this doctrine is essential for anyone living with a partner in Texas who may, intentionally or not, be crossing the legal line into marriage.
Call my office, The Barbosa Law Firm, at 972-418-9678 before you choose to pursue a common law divorce. You may not need one.
