Chapter 2-2 Common Law Marriage: Informal Marriage

• Jurisdiction: United States

2-2 Common Law Marriage: Informal Marriage

What people call a common law marriage is under the law referred to as an "informal marriage."³⁸

2-2:1 Requirement of Proof

A fact of life is that anyone who claims to be married to someone else must provide proof of such marriage. The proof normally consists of a marriage license and having a wedding ceremony.³⁹ In the absence of these, the public does not know the legal status of the person's marriage relationship.

2-2:2 Proof of Marriage

Parties to a common law or informal marriage in Texas do not have a marriage license and have not participated in a wedding ceremony. To prove the existence of their marriage, the parties must establish that they have (1) both agreed to be married, (2) lived together in Texas as husband and wife, and (3) told other people that they are married.⁴⁰ The law does not impose a minimum time requirement for cohabitation that would qualify the couple's union as an informal marriage. However, the parties may obtain some measure of formal recognition of their marriage by filing a "Declaration of Informal Marriage" with the County Clerk for the county in which they live.⁴¹ The declaration is actually a form prepared by the authorities that is signed by both parties and notarized by an appropriate official. A copy is included in Appendix 4.

2-2:3 Informal Marriage and Divorce

If the parties start living together but break up within 2 years and do not reconcile, a rebuttable presumption arises that the parties did not enter into an agreement to be married.⁴² If, on the other hand, a couple lives together for more than 2 years and then walk away and remain separated for at least 2 years, a rebuttable presumption arises that they were never married.⁴³ In either of these cases, if the couples had no children or joint assets, they need not take any further court action. However, if the spouses enter into the common law marriage by filing a Declaration of Informal Marriage, upon terminating their relationship, they must obtain a formal divorce just as spouses of formal marriages do.

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Notes:

^[38] Tex. Fam. Code §§ 2.401-2.402.

^[39] See, e.g., Tex. Fam...