Marriages do not always begin with exchanging “I do’s.” In Texas, you can get married informally in a process known as a common-law marriage. This is a completely legal way for you to get married to find yourself in the same position as persons who got married the traditional way with exchanging of vows. There would be no marriage ceremony or license that is signed by a local government official. However, these folks would be married just the same as anyone else who has a marriage license and did a traditional ceremony. 

The tricky part regarding common law marriage is that you can be common law married without actually realizing it. I imagine that many people two did enter into common-law marriages did so with the plan but I can see many more people living in a common-law marriage and not even realizing it. The implications of being married when you don’t even know it is pretty significant. There is a huge difference between living with someone and living with your spouse. It may not feel like there is a significant difference between the two but the law certainly does treat both kinds of relationships differently. 

In today’s blog post we’re going to talk about but I believe to be the most important issues regarding common law marriage regarding a normal citizen like yourself who may find yourself questioning whether or not he or she is in a common-law marriage situation. As with anything in the world of family law, certain characteristics and requirements must be in place to fulfill the obligations of being in a common-law marriage. To begin the blog post today we’re going to walk through what three characteristics must be in place for you to be in a valid, common law marriage.

How can you tell if you are in a common-law marriage or a simple dating relationship? 

Talking to people who have been in common-law marriages but didn’t know it their reaction is nearly universal: they didn’t feel like they were common-law married or married at all and therefore the thought of marriage never crossed their mind. However, there is no requirement that you must feel like you’re married To be married under common law principles in Texas. Rather, three requirements must be in place simultaneously for a valid common law marriage to be in place for you and your common-law spouse. 

First, you and your spouse or partner must agree to be married. Without a marriage license, there will likely be no documentary proof that you and your spouse have agreed to be common law married. It isn’t the most practical or realistic thing in the world for you and your partner to sign a marriage contract or something like that before you enter into your relationship. If you were to go to these links then you likely would just get married traditionally. No, most of the time when you are talking about an agreement to be married you are referencing some sort of commitment made to the person orally between yourselves. 

The clearest cut way to evidence and agreement to be married would be a conversation speaking directly on this subject wherein both you and your partner agreed to be married to one another. It would make the most sense, for future reference, for the language used to be clear and convincing. Even something as simple as exchanging vows regarding marriage between yourselves would go a long way towards proving the validity of your marriage in the future. 

I’m not sure that general references towards marriage without clear affirmations of wanting to be married will hold up in court in the future. On the other hand, if it is clear from your conversation that both you and your spouse understood the nature of the commitment that you were making and specifically used the word marriage when talking about your relationship that I think you are more likely to find that your marriage for a hold up if your spouse contests the validity in the future. 

Next, you and your spouse will agree to live together in one residence as husband and wife. this means that you all will reside in one home together for an extended period. Putting both of your names on the title to a home, sharing utility bills, making improvements to a home together and things of this nature would be examples of how you could evidence that you all have agreed to live together as husband and wife in the same residence. 

Bouncing back and forth in between multiple residences well not always remaining with your spouse is a good way to prove that you all were not common law married. There ought to be a great deal of consistency when it comes to your living situation. The less consistency that there is the less likely it that you will be able to show that you were in a common-law marriage.

Finally, you and your spouse would need to represent yourselves as being married to other people. This is also known as holding yourselves out as being married to the community. If your friends and close family members believe that you are married because the two of you told them that you were this would be a good start to show the validity of your common-law marriage. If your mother had no idea that you all were married then this is a sign that maybe you aren’t actually in a common-law marriage. 

Inviting people over to your home for getting together celebrating your marriage, being able to produce congratulatory messages in cards from friends and family on your getting married, and making that sort of commitment would be strong evidence to show that you were holding out to others that you were married. On the other hand, having a large group of people who were completely surprised to learn that you believe that you were common law married would almost surely sync an effort to prove the validity of the marriage. 

In addition to these characteristics, you and your common-law spouse must both be adults at least 18 years of age. You are not able to be common law married and legally married to another person. Finally, you cannot be related by blood to your common-law spouse. As long as all of these requirements are met by you and your spouse then your marriage would be able to be valid. If it truly is your desire to be, married in this way then I would recommend that you and your spouse consider how you can set yourselves up to be able to prove the existence of a marriage in the future. 

Ultimately, he may find that it is simply easier to just get married the old fashioned way than to have to jump through the hoops of proving all these elements to avoid any future disputes regarding the nature of your relationship. If it is important to you that your marriage not be questioned in the future then a simple wedding with a justice of the peace or other person who is legally able to marry you all may be the better route to take. 

If your common-law marriage is challenged in the future how will you go about proving that it existed in the first place? 

Just like with any other civil case, if you are challenged regarding the validity of your common law marriage then you will need to produce evidence to determine whether or not you were involved in a marriage. There is no preset type of evidence that you must produce to show that you were involved in a common-law marriage. A general preponderance of the evidence standard is utilized in civil cases which means that you must be able to show that it was more likely than not that your relationship was a common-law marriage rather than a dating or casual relationship. 

You can submit the issue of the validity of your common law marriage to either a judge or to a jury. If your situation progresses to the point where you are having to argue the validity of the marriage in court then you should have the assistance of an experienced family law attorney to do so. 

What are some ways for you to be able to prove that you and your partner agreed to be married? 

Since this was the first issue We talked about regarding proving the existence of a common-law marriage I think it is worthwhile for us to discuss it in greater detail. The agreement to be married must be immediate. This means that you cannot evidence a future desire or plan to get married at a later date. Rather, the agreement must be evidence showing that you and your partner agreed to start a marriage relationship from the moment of your agreement forward. 

Your actions must be able to make it pretty obvious that you agreed to be married. As I mentioned earlier there is little chance that you and your partner put anything in writing or entered into anything like a marriage contract. I suppose that the closest you would probably get to this is agreeing to enter into a prenuptial or nuptial property agreement with your spouse. However, I can’t get past the fact that if you were likely to engage in this type of behavior that you would be probably more willing to just get married traditionally and not leave anything to chance as far as the validity of your marriage. 

What are some ways for you to be able to prove bat you and your spouse were living together as husband and wife? 

To be frank, you need to be able to prove that you and your partner we’re doing more than just being intimate with one another in the same home. Rather, you and your partner would need to do household activities such as maintaining the home and exterior of the home, prepare meals together, engage in recreation together, raise children in the same home and perform activities such as this over a consistent period. 

The tricky thing is that there is no time requirement stated in the Texas family code for how long you and your partner must cohabitate to prove that you were living together for your common-law marriage. This is a double-edged sword that could allow you to enter into a common-law marriage rather quickly but at the same time would negate your ability to argue that you were living together even if you were under the same roof for a long time if he did not engage in marital activities together. 

Ending a common law marriage means filing for divorce in Texas 

I hope that I have been clear enough in today’s blog post to show you that a common law marriage is the same thing as a legal marriage done traditionally with a ceremony in the marriage license. The law does not treat your marriages anymore or any less valid than your neighbors who got married in a church or at the courthouse. As a result, just like your neighbors, you would need to seek a divorce to end your relationship with your common-law spouse. 

The only difference between your divorce and your neighbor’s divorce is that you must be able to show that you were involved in a common-law marriage period this is where the preceding paragraphs of today’s blog posts come into play. Your spouse may attempt to argue that you all were not in a common-law marriage due to one of the elements not being in a place that we have just discussed. 

If you seek to prove that a divorce is necessary and that a common-law marriage was in place you must be able to show that these three elements were in place simultaneously, therefore, requiring a divorce. If your spouse has retirement or other property considerations to be concerned with he or she may not want to divide up any of those assets in the divorce case. Keep in mind that Community property laws would impact you and your spouse in divorce whereas those laws would not come into play if you were merely cohabitating and we’re in a dating relationship. 

Closing thoughts on common law marriages in Texas

To me, the biggest key to proving a valid common law marriage is being able to present evidence that you and your partner did agree to be married in the 1st place. If you are not able to prove an agreement to be married then none of the other issues are even relevant. If you are wanting to set yourself up to present evidence to prove your marriage in the future then this is where I would start. You need to be able to present evidence that there was a clear understanding that a marriage relationship was beginning from the moment you all began to discuss the subject. Anything short of this is likely to fail the sufficiency test as far as evidence is concerned.

Next, to prove the other elements of your case I would work to make sure that there is some sort of paper trail showing that you and your partner were cohabitating together. That could mean opening up accounts in both of your names about utility statements or even mortgage applications. Both of you contributing time and income towards renovating the house or making improvements to other shorts would be another great way to show the nature of your relationship was more than just a “friends with benefits” type of scenario. 

Finally, do not underestimate the importance of having witnesses available who can testify about the nature of your relationship and how you promoted their relationship in your community. Doing something to promote your marriage such as a party to celebrate the common law marriage will be a logical place for you to start. Christmas cards, applications for loans or mortgages listing yourselves as spouses, and filing taxes as married persons would further cement that you all were holding yourselves out as being married.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances would relate to the law in a child custody or divorce case. Thank you for your interest in our law office and we hope that you will join us again tomorrow as we continue to share information that is unique and relevant regarding Texas family law. Our attorneys and staff take a great deal of pride in representing people in our community just like you.