Q: Does Texas have common law marriage?

A: Yes. Rather than use the term “common law marriage,” Texas uses the term “informal marriage.”

Q: What is an informal marriage?

A: An informal marriage is a marriage that the State legally recognizes without the couple having acquired a marriage license or performed a marriage ceremony.

Q: Why do common law marriages exist?

A: The justification for informal marriage harkens back to the natural law era when individuals did not need government permission to marry.

Q: Can I informally marry in any State?

A: No. Currently, only a minority of States allow for common law marriages.

Q: What if I informally marry in a State that permits informal marriages but later move to a State that does not permit informal marriages?

A: All States recognize common law marriages established in States that permit common law marriages. The exception to this is same-sex marriages. Not all States recognize same-sex marriages.

Q: If I am living with my partner, am I informally married?

A: Maybe. Living together is one requirement for a common law marriage, but merely living together is not enough to establish a common law marriage.

Q: How do I establish a common law marriage in Texas?

A: The Texas Family Code specifies two ways in which a couple may establish an informal marriage. The first way a couple may establish an informal marriage is through a signed declaration. The second way a couple may establish an informal marriage is through the three-prong test:

1. the man and woman must agree to marry,
2. the man and woman must live together after they agree to marry, and
3. the man and the woman must hold themselves out as husband and wife.

• Russell v. Russell, 865 S.W. 2d 929, 931 (Tex. 1993) (“fil[ing] a declaration of informal marriage with the county clerk . . . constitutes prima facie proof of the parties [sic] informal marriage”).

Q: Why is establishing a common law marriage important?

A: Establishing an informal marriage may be important for a variety of reasons. For instance, after a couple separates one party may file for divorce to collect some of the property and money the couple gained while cohabiting. Because the parties often have not signed a declaration of informal marriage, the party wishing to establish the marriage looks to the three-prong test.

• If a couple is not married, the couple does not have spousal privilege. Under spousal privilege a defendant can prevent confidential communications to the other spouse from being used against the defendant at court. In Jasper v. State, 61 S.W.3d 413, 418 (Tex. Crim. App. 2001) the court found that the couple was not informally married, so the girlfriend’s testimony was admissible.

• If a couple is not married, the remaining partner cannot collect on a wrongful death claim. One element of a wrongful death claim is that the survivor of the decedent be an immediate family member. In Prince, 2010 WL 87334 (Or. A.G. Jan. 7, 2010) Rodrick Williams, Jr., died in a motor vehicle accident, and Tamara Lashae Prince brought a wrongful death claim against Foreman Contractors for his death. Because the jury found that Williams and Prince were not informally married, Prince could not collect damages for William’s death.

Q: How do I satisfy each prong of the three-prong test?

A: Each prong can be satisfied in multiple ways. Of the three prongs, the first prong—the man and woman agreed to marry—is the most difficult to establish. To establish that the man and woman agreed to marry, the court may consider facts like whether the couple raised a family together, whether the couple filed joint tax returns, or whether the couple opened a joint bank account. Additionally, if a party waits to establish an informal marriage until after the couple has separated for two years, the court rebuttably presumes that the couple did not agree to marry. The following does not represent a comprehensive list of all the possible ways to satisfy each prong.

• All three of the prongs must be satisfied at the same time. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ).

• The couple must have already agreed to marry, not agree to marry at some future date. In Jasper v. State, 61 S.W.3d 413, 418-419 (Tex. Crim. App. 2001) although the woman lived with the man since she was 15 and although they had two children together, the trial judge found that the couple agreed to marry at some future date.

• The agreement to marry requires that the parties intend to have a present, immediate, and permanent marital relationship. Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. 2001).

• Occasional introductions as husband and wife is not enough to establish that the couple held themselves out as husband and wife; the couple needs to have a reputation in the community as being married. Eris v. Phares, 39 S.W.3d 708, 715 (Tex. App. 2001).

• Agreeing to be married “in God’s eyes” was sufficient to establish an agreement to be married. Matter of Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App. 1987).

Call my office for a consultation if you have created a common law marriage and need a divorce.