Donald K. Nix - Attorney At Law - Common Law Marriage

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Common Law Marriage

Texas recognizes common law marriage, also called “informal marriage” or “marriage without formalities.” In the frontier days, clergymen with the power to officiate a ceremonial marriage rode a circuit, and were often not available for months or years. Those wanting to marry would “Declare” they were married in front of witnesses, move in together, perhaps have a child or two, then formalize the union when the preacher got around to their neck of the woods. The marriage would be backdated to the day they declared themselves married, thus legitimating the children.

Today, the availability of clergymen and Justices of the Peace is not a problem, but Texas still accepts common law marriages if the legal requirements are met. Today, many people live together with no intention of marrying. Frequently, these people refer to their significant other as their common law husband or wife. Many of these same people will also claim that they plan to get married. These two concepts are incompatible — You can’t be married and also intend to become married. You are either married or single. Since most people don’t really understand the requirements of common law marriage, living together can be legally risky. It’s not uncommon for couples to claim to be married in some instances, like filing joint income tax returns, or to obtain employer health insurance coverage, unwittingly creating evidence they intend to be married. If the relationship fails, and one files for divorce, it’s hard for the other to claim that no marriage existed.

There is a procedure under Texas law where the parties to an informal marriage can file a document with the County Clerk called a Declaration of Informal Marriage. Assuming all of the requirements are met, and the declaration is properly filed, the marriage becomes official and is back dated to the date the parties claim that their informal marriage began. Few people take advantage of this procedure. Terminating a common law marriage requires a divorce, just as a ceremonial marriage. Sometimes, one party files a divorce, alleging a common law marriage, and the other party claims is no marriage. To qualify as an informal marriage, the parties must be above the age of 18 years, show they agreed to be married, live together in Texas after that agreement, and represent to others that they are married. If the parties cease to live together, there is a legal presumption that no marriage existed unless one of the parties takes legal action to prove the common law marriage within a year of separating. This presumption can be rebutted by evidence, which creates a lot of potential problems — bigamy, void marriages, invalidation of joint tax returns, illegitimate children, etc. If you have lived together, it’s a good idea to consult with an attorney before marrying someone else. Even better, consider drawing up a non-marital agreement.

Q#1: How long do you have to live together to have a common law marriage?
A) There is no particular length of time required. In theory, even one day (or night) could constitute a cohabitation, but the longer people live together, the stronger the evidence of an intent to be married.

Q#2: I never refer to my girlfriend as my wife, but she sometimes refers to me as her husband in public, and I don’t deny it because I don’t want to embarrass her or start a fight. Does that mean we’ve represented ourselves as married?
A): That would be strong evidence in favor or the representation requirement for a common law marriage.

Q#3: My boyfriend and I keep almost everything separate — our tax returns, our bank accounts, even our credit cards — but he has me covered on his health insurance policy as his wife because I don’t have health insurance benefits where I work. Does that make us common law married?
A) Again, it is strong evidence that there was a representation of marriage. Possibly, you could be covered as a “dependent” rather than as a spouse.

Q#4: I never got a divorce from my first spouse, but my girlfriend and I tell everyone we’re married and we file joint income tax returns. Are we common law married?
A) No. As a married person (to your first spouse), you aren’t eligible for marriage — formal or common law — because only single people can marry. Also, you are violating federal law by filing a joint tax return with a non-spouse.

Q#5: We’ve been living together for ten years, during which time we had three children, and have considered ourselves married all that time. If we get formally married now, will it be backdated to when we first starting living together as husband and wife?
A) No, because when you apply for a marriage license, you have to claim you are single, and you aren’t single if you are common law married. Instead, you should file a Declaration & Registration of Informal Marriage with the county clerk, which will validate the informal marriage from the date claimed (assuming you were single at the time). Even if you don’t, children of a couple who eventually marry are legitimated by the marriage.