Ten years ago, my knowledge of common law marriage in Texas was no better than any of the myths floating around. At barbecues, the common myth was, “If you live together long enough, Texas considers you married.” I would have parroted it without a second thought. I would have thought it was right, and not only would I have been wrong, I would have been dangerously wrong.
Legal problems were what I thought I was solving when I was studying Texas family law. A friend was in a relationship that ended in a snap. She did not have a marriage and did not have a marriage license. She had lawyers talking about divorce. I figured that there had to be some family law in Texas that would make sense of the divorce, and that there would be some mythology that would make sense of the divorce.
There is a lot of confusion about common law marriage, so let’s talk about it straight and smooth. It is also called informal marriage, which is a formal concept in the Texas legal system.
Table of Contents
What Is Common Law Marriage?
Texas is unique in the fact that common law marriage is legally recognized…and they even have a different name for it!
It’s also called informal marriage and it is valid in the eyes of the law even if a couple does not get a wedding ceremony, hire an ordained minister, or get a marriage license.
In the eyes of Texas law, a couple is considered married when the following three things happen, simultaneously:
There does not have to be a ceremony and there is no waiting period for these conditions to marry the couple, and these conditions create an informal marriage with the same legal binding as a licensed marriage.
This is what catches people off guard, and it caught me off guard as well.
Is Texas a Common Law State?
Definitely! Texas does recognize common law marriage.
If you are asked, “Is Texas a common law state?” It is correct to say yes. Texas is one of the most popular states to recognize informal marriages as laid out in the Texas Family Code Section 2.401.
You might also notice individuals looking up Texas common law marriage online. Most of them are trying to verify whether their relationship qualifies or not. And trust me, that question often comes up during moments of stress: breakups, deaths, inheritance disputes, or tax issues.
Three Legal Requirements, No Cutting Corners
Texas courts don’t leave things up to chance. The requirements must all be met and exactly at the same time.
Here’s how you would explain it simply.
1. Present Agreement to Be Married (Not “Someday”)
This is the aspect that is most confusing.
The courts are looking for a present, immediate, mutual agreement to get married, not to be engaged, and not to have any plans for the future.
When common law marriage is brought up, the following sentences actually say the agreement is most likely absent:
Texas courts have restated it time and time again: an agreement to get married in the future is not sufficient.
In normal life, courts consider how you act:
2. Co-habiting Together in Texas
This is the most simple and self explanatory part.
You must:
This means, married couple, living together, in Texas, for any amount of time.
The myth of the 7-year marriage rule is finally gone. There is no time frame creating a marriage in Texas.
3. Holding Out as Married
This legal term may seem strange, but it makes a difference.
“Holding out” means you present yourselves to others as a married couple.
That could mean:
This is to prevent fraud marriages. Texas wants marriages to be open, not kept a secret.
Basic Legal Requirements You Still Must Meet
Even if you meet the three criteria above, Texas law still requires:
In Texas, Common law marriage isn’t a workaround. It has the same requirements as a formal marriage.
What is the process for proving a Common Law marriage in Texas?
This is where it can become a bit sticky.
Option 1: Filing a Declaration of Informal Marriage
The most straightforward process is for one to consummate the marriage, then file a Declaration of Informal Marriage with the county clerk.You both go together, sign the form, and just like that, your marriage is legally registered.
I often tell people: if you believe you’re married anyway, filing this declaration can save you years of legal headaches later.
Option 2: Court Verification
When there is a dispute over the marriage, proof is essential. For courts, proof includes:
Texas courts look over these scenarios individually, and each judge will review them thoroughly, especially when money or property are concerned.
Common Myths About Common Law Marriage in Texas
I’ve encountered all of these, so have you.
Myth #1: “Living together for 7 years makes you married.”
This is completely false.
Time in itself refers to absolutely nothing.
Myth #2: “There’s a common law divorce.”
This is false.
Once a common law marriage is formed, the only way for it to be terminated is through divorce or death, just like any other marriage.
The marriage does not end through separation.
Myth #3: “We didn’t mean for it to be legal.”
The courts are not concerned about your intentions. They are concerned with actions more than private beliefs.
Ending a Common Law Marriage in Texas
This is the unfortunate part people usually learn too late.
If you are common law married, the only way to legally end the relationship is to get a divorce.
A “common law divorce” is a myth.
Don’t Forget The 2 Year Rule
If you separate and do not file a lawsuit within 2 years, the Texas law covers a rebuttable presumption that there was no marriage if you cannot prove a marriage existed.
It doesn’t conclude the claim, but it makes substantiating the claim more difficult.
There is a lot that can depend on timing.
Proving a Common Law Marriage Does Not Exist
It can happen in some cases that one person asserts a marriage, while the other party denies it.
To prove it, the court examines the facts:
In my experience, text messages can be determining factors, especially when one party did not anticipate that the text would be referenced during the marriage dispute. The words that were written may prove that the parties were not married.
Same Sex Common Law Marriage
Yes, there is same sex common law marriage in Texas.
After Obergefell v. Hodges, Texas used the Relation Back Doctrine. This means the court will treat the same sex marriage as being in effect from the date when all the legal prerequisites were first satisfied, even if it was prior to the enactment of the same sex marriage law in the United States.
This has a significant effect on the distribution of property and on rights of succession.
Benefits of Common Law Marriage in Texas
There is an upside when discussing common law marriage, and Texas is pretty unique when it comes to law marriages. Common law marriage in Texas has a unique, but effective marriage that has more of a mainstream marriage’s benefits:
To summarize, when you are recognized, you are married in every definition of the word.
Why is This Important?
When people laugh and say that Texas only has a common-law marriage until people start to have children, start a family, and own personal and community property.
All of these assets and debts become a community property. And so, because of Texas’ legally informal community marriage and community property laws, informal community assets become legally owned by the married couple, no matter what.
So when people say, ‘When did I become married?’, the people are shockingly and legally married because of community marriage laws.
Final Thoughts and Why It Matters Most
Learning is not about fear and the marriage is not about legal documents. It’s more so about a community and understanding your lack of options. Especially common law marriage in Texas, community property strongly limits your options. And because of all of this, the sense of assurance and clarity is far greater than the myths people hear.
What you should take from this is that a marriage in Texas occurs when a spouse takes action, not when there is a ceremony.
