Common Law Marriage in Texas

It is more common in today’s world to find couples forgoing a formal marriage. Whether you are simply cohabiting before you are married or do not plan on getting married, knowing how the law works would be wise.

Myths about Common Law Marriage

  • Here are many of the myths that circle about common law marriage.
    If we live together for 6 months or more, we are common law married.
  • If we move in together at all, we are common law married.
  • If we get engaged, we are agreeing to be common law married.
  • If my girlfriend tells someone that we are married but I don’t agree, then we might be common law married.
  • If my girlfriend uses my last name without my permission, then we might be common law married. Myth 6: If we agree to get married in the future, we are common law married now.
  • If we agree to be married but never move in together, we still might be common law married.
  • If we talked about being married but never told anyone, we might be common law married.
  • If we have kids together and they have the father’s last name, we are common law married.
  • If we agree to be common law married, then we can agree to be divorced the same way.

Are these true? Let’s dive into why these are mere myths.

Texas Law and the rules for Common Law Marriage

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
3. represent to others in Texas that they are husband and wife

All three of these factors must exist at the same moment in time to legally establish a common-law marriage. You also must prove that both spouses 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 at least 18 years of age or older, you cannot be related, and you must not be currently married to someone else.

How do you prove 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. 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.

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. 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.