Currently, only eight states recognize common-law marriages. While the requirements for these “informal” marriages vary by jurisdiction, generally speaking, “A common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony.”
In Texas, common-law marriages are governed by Texas Family Code, Title 1, Subtitle A, Chapter 2, Subchapter E, “Marriage Without Formalities.” The requirements for common-law marriage were codified in 1970, but these marriages “have been recognized in Texas since 1847.” O’Connor’s Texas Family Law Handbook Ch. 1-A § 3.1 (2021 ed.). A common-law marriage is “as legally valid as a formal marriage.”
We’ve summarized below what it takes to both form and end a common-law marriage in Texas, and TexasLawHelp.org has a good overview of these issues and more, which is available here: https://texaslawhelp.org/article/common-law-marriage.
Forming a Common-Law Marriage in Texas
To begin with, both parties must be at least 18 years old, and neither can be married to anyone else. Tex. Fam. Code § 2.401(c), (d). In addition, the same restrictions on marriage between related people apply in common-law marriages. See, e.g., Tex. Fam. Code § 2.402(b)(4). The existence of a common-law marriage can be shown by either:
The registration of a Declaration of Informal Marriage signed by both parties with the county clerk, or
Agreeing “to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.” Tex. Fam. Code § 2.401(a)(2). This is a fact-based determination made by the trial court, and “the party seeking to establish the existence of the marriage bears the burden of proving the three elements by a preponderance of the evidence.” In Int. of O.R.M., 559 S.W.3d 738, 744 (Tex. App. 2018). In addition, “An informal marriage does not exist until the concurrence of all three elements.” Id.
Although the current statute specifies “husband and wife,” it also applies to same-sex couples, due to the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, 576 U.S. 644, 680 (2015). O’Connor’s Texas Family Law Handbook Ch. 1-A § 3.2(1) (2021 ed.).
Ending a Common-Law Marriage in Texas
As common-law marriages are legally valid, they “may be terminated only by death or a court decree.” Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981). However, “If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.” Tex. Fam. Code § 2.401(b). Subsection (a)(2) refers to those “holding themselves out to be married,” rather than opting for the Declaration of Informal Marriage.
If it is time to formally end a marriage, TexasLawHelp.org has a lot of information and forms related to divorce on this website: https://texaslawhelp.org/family-divorce-children/divorce.