No Such Thing
Some people mistakenly assume if they are living with a partner for X number of years that they are “Common-Law Married.”
This is false. In fact, the “Common-Law Marriage” doesn’t even exist in Texas, but what does exist is the “Informal Marriage” which has strict requirements to form a valid marriage.
Proof of Informal Marriage
An Informal Marriage can be declared and registered by going to the County Clerk and filing an official form.
Also, an informal marriage can be proved after the fact. To prove
the existence of an informal marriage, there are three main elements that have to be shown in order to prove that a valid informal marriage exists, or existed.
The Elements
First, the man and woman must “agree to be married.” This is the most important because the rest of the elements must occur AFTER this agreement. What you are looking for here is an actual agreement between the man and woman, whether it is a conversation, some sort of ceremony, or even just a written statement on a napkin signed by both.
Second, AFTER the agreement, the man and woman must live together in Texas as husband and wife. This element is fairly self-explanatory. It just requires the man and woman to actually live together in the same household, and do husband and wife things.
Third, AFTER the agreement, the man and woman must represent to others that they are married. This is more than just occasionally referring to each other as “husband” or “wife” in public. This can be evidenced by filing taxes as married, listing the other as spouse on public forms, as well as the general reputation in the community as being married.
—See Tex. Fam. Code § 2.401(a)(2)
Informal Divorce
There is no such thing as an informal divorce. Again, the common misconception is that an informal marriage can be dissolved simply by separating or no longer living together. However, under Texas law if you have formed an informal marriage then you must get a divorce just as you would if you had a ceremonial marriage and marriage license.
Yet, there is one caveat to this rule. If you have formed an informal marriage and you separate, you have two years to file for divorce before the law presumes that you never were married. However, this presumption can be rebutted by evidence showing otherwise.
Why Have Informal Marriages?
Let’s face it, getting married can be expensive. Yet, people still want to show their level of commitment to their partner despite not being able to afford a marriage license. However, keep in mind that informal marriage still provides for all the same responsibilities and legal ramifications that a formal marriage does under Texas law, and the informal marriage also helps to assert ownership of community property that wouldn’t be available without a marriage.
–Authored by James R. Palomo, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479