What is a common-law marriage? A common law marriage is an informal marriage. The spouses never applied for, signed, or filed a marriage license or had any formal kind of marriage ceremony, but are still considered legally married. There are a number of misconceptions about common law marriage. Read on to learn more about common-law marriage.
Under the Texas Family Code, two people are common law married if they can prove they meet three requirements. First, they agreed to be married. Second, they lived together in Texas. Third, they represented to others that they were married.
1. Agreement to Be Married in the Present
The first requirement is called “an agreement in praesenti.” This requirement means that there must be some evidence that the parties agreed that they were now married in the present. This is not the same as when two people get engaged and agree that they will get married at some point in the future. This present agreement means that the parties agreed that as of the moment they made their agreement, they were married.
2. Lived Together in Texas
The second requirement is referred to as “cohabitation.” This means that the parties must prove that they were living together after or at the same time that they made their present agreement that they were married. The parties must live together as spouses rather than as mere romantic partners or roommates. It is also not enough if the parties agree that they will live together at some point in the future. In addition, the parties must prove that they lived together in Texas rather than in some other state. But, it is important to note that this is the only Texas-specific of the three requirements. The parties do not have to prove that they were in Texas when they made their present agreement to be married nor do they have to prove that they were in Texas when they represented to other people that they were married.
3. Represented the Marriage to Others
The third requirement is referred to as “holding out.” There must be some evidence that the parties held out or represented to others that they were presently married. How would someone prove this? Here’s an example: the wife might testify about a dinner party at which her husband referred to her to friends and neighbors as “my wife” rather than “my girlfriend.”
The important thing to remember about each of these three requirements is that they must all exist at the same time for the common-law marriage to begin. If two people live together and refer to the other as their spouse to friends but have not made a present agreement to be married, then there is no common-law marriage. If two people make a present agreement to be married and live together in Texas but only refer to each other in public as boyfriend/girlfriend, then there is no common law marriage. If two people make a present agreement to be married and refer to each other with other people as “my spouse” but never live together in Texas, then there is no common-law marriage. The requirement that all three of these elements exist at the same time can make a common-law marriage very hard to prove.
In addition, even if all three requirements are met, a common-law marriage cannot be created in this scenario: if one of the parties is already married to a different person (even if they are estranged), no common-law marriage will exist. Consider this example: Bob married Cindy in 1972 but they both moved away from each other and never spoke again. They never divorced. In 1995, Bob met Lisa. Bob and Lisa made a present agreement to be married, lived together in Texas, and they represented to all their friends and family that they were married. Bob and Lisa do not have a common-law marriage because Bob is still legally married to Cindy.
There are some misconceptions about common-law marriage. We have already addressed the first misconception. Many people believe that merely living together for a long period of time creates a common-law marriage. As discussed, all three requirements must exist at the same time to create a common-law marriage. The second misconception is that a common-law marriage is not a real marriage because there is no marriage license. This is completely untrue. If one of the spouses can prove all three requirements, then the parties are considered just as legally married as if they had obtained, signed, and filed a marriage license and had a formal ceremony. This also means that the couple might have accumulated community property from the time the common-law marriage came into existence just like in a formal marriage. The third misconception is that if two people are common-law married, then they do not have to get formally divorced. This is also completely untrue. A common-law marriage is just as legally valid as a formal marriage. If someone is common-law married, then they must go through the formal divorce process to end the marriage. Ceasing to live together or announcing that they no longer are married is not enough — the parties must go through the entire formal divorce process to end the marriage.
To learn more about common-law marriage in Texas, consult with one of our attorneys.