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Informal Marriage or Common Law Marriage

What is a Common Law Marriage in Texas?


As a divorce attorney, it is a common inquiry by our clients was to whether they have a “common law” marriage. In a Court of law or other legal proceeding, the marriage between 2 individuals may be proved by evidence that (1) a declaration of their marriage has been signed as provided by the Texas Family Code; or (2) the parties 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.


If a proceeding in which a marriage is to be proved as a common law marriage 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.
However, a person under 18 years of age may not be a party to an informal marriage; or execute a declaration of informal marriage under Texas law. 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.


Do I have to file a declaration of a “Common Law” marriage?
If the parties have not executed and registered a declaration of informal marriage as prescribed under the Texas Family Code, a party claiming the existence of a marriage must establish that he or she has met the statutory requirements for an informal marriage enumerated above and had the capacity to enter into the marriage.


Can a same sex couple have a “Common Law” marriage?


Yes, since the Obergefell decision by the U. S. Supreme Court ruling in 2015. The following parties cannot enter into an informal marriage: (1) a person under the age of eighteen; (2) related parties (including an ancestor or descendant, whether by blood or adoption; a brother or sister, whether by whole or half blood or by adoption; a parent’s brother or sister, whether by whole or half blood or by adoption; a brother’s or sister’s son or daughter, whether by whole or half blood or by adoption; a current or former stepchild or stepparent; and a son or daughter of a parent’s brother or sister, whether by whole or half blood or by adoption); and (3) a person who is presently married to someone who is not the other party to the informal marriage.


The informal marriage begins when all the statutory elements are concurrently satisfied in Texas and the parties have the capacity to marry. An informal marriage, like a ceremonial marriage, lasts until it is dissolved by death, divorce, or annulment. An informal marriage has the same legal consequences and effects as a ceremonial marriage. It is important to know that Section 2.401, restricting or prohibiting same sex informal marriages, was recognized as unconstitutional by Ranolls v. Dewling. In Ranolls v. Dewling, No.1:15-CV-00111, 2016 WL 7726597 (E.D. Tex. Sept. 22, 2016). Intervenor’s claim survived summary judgment in wrongful death and survivor action based on alleged informal marriage that took place prior to Obergefell decision of June 26, 2015.


What do the Courts say about a Common Law or Informal Marriage?


In Russell v. Russell, 865 S.W.2d 929 (Tex. 1993). A party can establish proof of an informal marriage by either direct or circumstantial evidence.


In the case of Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). Cohabitation means living together as husband and wife, maintaining a household, and doing things ordinarily done by a husband and wife. Cohabitation is more than just sexual relations under a common roof. For purposes of establishing a common-law marriage, an inferred agreement to be married must be a present agreement, unconditional and unqualified, to be husband and wife as long as both of the spouses shall live.


In Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978). The Texas Supreme Court upheld a directed verdict finding a common-law marriage based upon the uncorroborated testimony of a surviving widow that there had been a present agreement between herself and the decedent to be husband and wife when the other elements of common-law marriage were conclusively proved by evidence other than the widow’s testimony.


In Ex parte Threet, the Court found that under Texas law, there can be no secret common-law marriage between the parties. The parties must fulfill the statutory requirement of explicitly holding themselves out to others that they are living together as husband and wife.

In re O.R.M., 559 S.W.3d 738 (Tex. App.—El Paso 2018, no pet.). The father argued in a termination case that he was the presumed father by informal marriage. Father was unable to prove an agreement to be married. An agreement to be married, as required for an informal marriage to exist, cannot be inferred from the mere evidence of cohabitation and representations of marriage to others, but this evidence may be circumstantial evidence of an agreement to be married.


In the case, In re C.M.V., 479 S.W.3d 352, 360 (Tex. App.—El Paso 2015, no pet.), the Court found that to establish that the parties agreed to be husband and wife, as required to establish a common-law marriage, it must be shown that they intended to create an immediate and permanent marriage relationship, not merely a temporary cohabitation that may be ended by either party.


In Farrell v. Farrell, 459 S.W.3d 114, 118 (Tex. App.—El Paso 2015, no pet.), an informal or common law marriage does not exist unless all three elements are present, and all three elements must exist at the same time.

In the important case of Small v. McMaster, 352 S.W.3d 280 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). An informal marriage exists in Texas if the parties (1) agreed to be married; (2) lived together in Texas as husband and wife after the agreement; and (3) represented to others that they were married. The existence of an informal marriage is a fact question. The party seeking to establish the existence of the marriage bears the burden of proving the elements by a preponderance of the evidence. An informal marriage does not exist until all three elements are present.

Again in Nguyen v. Nguyen, 355 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). An informal marriage does not exist until all the statutory elements are concurrently satisfied: (1) agreement of the parties to be married; (2) living together in Texas as husband and wife; and (3) representing to others in Texas that they are married.

Joplin v. Borusheski, 244 S.W.3d 607 (Tex. App.—Dallas 2008, no pet.). The existence of a common-law marriage is a question of fact to be resolved by the fact finder.

In Phillips v. Dow Chemical Co., 186 S.W.3d 121 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The Court found that an alleged common law marriage can be invalidated by an undissolved prior marriage.

In Kingery v. Hintz, 124 S.W.3d 875 (Tex. App.—Houston [14th Dist.] 2003, no pet.), the Family Code clearly states that a person under the age of eighteen years may not be a party to an informal marriage. A party seeking to establish an informal marriage must demonstrate that he or she is legally capable of marrying. Therefore, a minor is emancipated only after entering into a legal marriage.


In the case of Eris v. Phares, 39 S.W.3d 708 (Tex. App.—Houston [1st Dist.] 2001, pet. denied), one party alone holding out to the public that the parties are married as husband and wife, is insufficient evidence to prove a common law marriage. Both parties must represent to others that they are married.


In Villegas v. Griffin Industries, 975 S.W.2d 745 (Tex. App.—Corpus Christi 1998, pet. denied), it is important to know that informal marriages, like ceremonial marriages, can be dissolved by only death of one spouse, divorce, or annulment.


In Flores v. Flores, 847 S.W.2d 648 (Tex. App.—Waco 1993, writ denied), the evidence must show that the parties intended to have a present, immediate, and permanent marital relationship. Further, the parties must agree to be husband and wife. Until all three elements of a common-law marriage exist, even though they may occur at different times, there can be no common-law marriage.


The Court in the case of Roach v. Roach, 672 S.W.2d 524 (Tex. Civ. App.—Amarillo 1984, no writ) ruled that each case of claimed common-law marriage must be determined upon its own facts.

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