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Misconceptions of Common Law Marriage

Do we have a common law marriage?

I must get at least one call every day from persons claiming they have a “common law marriage” and wish to fight for property or fight for custody of children.   The general belief of most persons is that if they are living together for 6 months that they automatically have a common law marriage.   I don’t want to alarm you but that is not the law in Texas.   Or, the other inquiry is that they purchased real property which is in solely one of the persons name and they want to have a divorce to divide the property.   Again, that can be a real issue for persons living together in a relationship and purchasing real property either in one of the individual’s name or as co-owners.

What do I need to prove a common law marriage?

In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that a declaration of their marriage has been signed as provided by state law.  Usually this means that a certificate of common law marriage was signed by both parties and filed with the county clerk.

What if we did not file a certificate of common law marriage?

If the persons have not filed a common law certificate with the county clerk, then they MUST meet a 3-prong test to prove in a court that they have a common law marriage.

The proof must show that

  1. the man and woman agreed to be married;
  2. after the agreement they lived together in this state as husband and wife; and,
  3. they  represented to others that they were married.

What if we have been separated for over 2 years without alleging a common law marriage?

Well, you will have a legal problem because the statutes require you to allege the common law marriage within 2 years of separation.

If a proceeding in which a marriage is to be proved as provided by a common law marriage is not commenced before the 2nd  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.

What if I was under 18 years of age?

A person under 18 years of age may not be a party to an informal marriage; or

execute a declaration of informal marriage under the Texas Family Code.

What if my partner was already married to someone else?

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.

If the parties have not executed and registered a declaration of informal marriage as prescribed under Tex. Fam. Code § 2.402, 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.

The following parties cannot enter into an informal marriage: (1) a person under the age of eighteen; (2) parties of the same gender; (3) 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 (4) a person who is presently married to someone who is not the other party to the informal marriage.

When does my common law marriage begin?

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.

What if we do not meet the criteria of a common law marriage and we purchased real property?

I will discuss this issue in a later article.   However, I will state that there is recourse if real property was purchased during a relationship which does not qualify as a common law marriage.

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Attorney Roland Barbosa

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