Common Law Marriage in Texas

There are a ton of myths about what it takes to establish a common law marriage in Texas. I have heard things like, “you have to have a joint bank account”, or “you have to live together for at least seven years”.  None of these things are true!  In order to have a common law marriage in Texas, all you have to have are these three elements:

  • Agree that you are now married;
  • Live together as husband and wife; and
  • “Hold out” to others that you are now married. (Tex. Fam. Code §2.401(a)(2).)

All three of these requirements must exist at the same time in order for you to establish a valid common law marriage.  Additionally, you must have the capacity to enter into marriage.  That means that you must be at least 18 years of age & not already married to someone else.  If you are legally married to someone else, it is impossible to establish a common law marriage.

To prove that there is an agreement to be married, Texas caselaw states that there must be evidence establishing a present, immediate, and permanent intent between the parties to be married.  An agreement to be married sometime in the future is not enough to establish a common law marriage.  So, people who are “engaged to be married” cannot establish a common law marriage.

The requirement that each party must “hold out” to others as being married means that the parties must represent to other people that they are married.  Evidence of “holding out” as being married include such things as introducing one another as, “this is my wife”, or “this is my husband”.  Other evidence would include wearing rings on ring fingers, signing credit applications as a married couple, filing joint tax returns, adding someone to the “family” gym membership, and even the return address on Christmas cards being “Mr. and Mrs.” can be sufficient to prove the existence of an agreement to be married and the requirement of “holding out” as being married.

Common law marriage is the same under the law as a ceremonial marriage.  Once a common law marriage is established, it is treated the same as any other legal marriage.  In order to terminate a common law marriage, a divorce is required.  However, there is a rebuttable presumption that no marriage ever existed unless a suit is brought to prove the existence of the marriage within two years of the couple’s separation.  So, do not delay in seeking a divorce if you are separated from a common-law spouse.

Common law marriages can be a tricky concept for some.  You must be extremely careful to not establish a common law marriage inadvertently!