Can you accidentally get married? Let’s say that you’ve been living with your partner for more than 6 months and your partner calls you their husband/wife. Does that mean that you’re common-law married?
It depends.
The common-law marriage in Texas is technically called an “informal marriage,” but they are the exact same thing. You and your partner can create a common-law marriage in 3 simple steps.
It is hard to prove, but if you find yourself in one, then the outcome is just like as if you’d stood in a church and recited vows in front of a preacher.
Steps to Create a Common-Law Marriage
First, you and your partner must “agree to be married.”
This step is the most important because the rest of the steps must occur AFTER this agreement. What you are looking for here is an actual agreement between you two. The agreement can be an oral agreement in a conversation, some sort of ceremony, or even a written agreement on a napkin signed by both of you.
Words have consequences, so if you’re going to accidentally get married, then it’s because you agreed to something without realizing the full legal consequences.
Second, AFTER the agreement, you two must live together in Texas as “husband and wife.” Now, even though the law says “husband and wife,” Texas now recognizes same-sex common-law marriages following the U.S. Supreme Court decision in 2015.
This element is fairly self-explanatory. It just requires you and your partner to actually live together in the same household, and do marital things.
You might be surprised to learn that, contrary to popular belief, there is no magical amount of time that you two can live together to be considered common-law married. You two could live together for 20 years without being common-law married, or you could live together for 2 days and become common-law married. The agreement in Step 1 is the difference maker.
Third, AFTER the agreement, you and your partner must represent to others that you are married. This is more than just occasionally referring to each other as “husband” or “wife” in public, but sometimes even that is enough.
This can be evidenced by filing taxes as married, listing the other as spouse on public forms, updating your social media status as married, as well as the general reputation in the community as being married.
—See PROOF OF INFORMAL MARRIAGE – Tex. Fam. Code § 2.401(a)(2)
Proof of Informal Marriage
An informal marriage can also be declared and registered by going to the County Clerk and filing an official form.
—See DECLARATION AND REGISTRATION OF INFORMAL MARRIAGE – Tex. Fam. Code § 2.402
There is little chance of you accidentally filing an official registration of an informal marriage. If you’re going to accidentally find yourself in a common-law marriage, it’s probably going to be proved after the fact.
To prove the existence of a common-law marriage, the three main elements have to be shown in that order to prove that a valid common-law marriage exists, or existed.
Let’s say that the two of you lived together as spouses, but never agreed to be married. In that scenario, there is no common-law marriage.
What if the two of you held yourself out to the public as being married, but the two of you never actually agreed to be married? In that scenario, there is no common-law marriage.
Finally, what if the two of you agreed to be married, but didn’t live together as spouses or hold yourself out to the public as being married? Well congratulations, you’re not common-law married!
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 full-blown divorce to end the marriage 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.
Although, this presumption can be rebutted by evidence showing otherwise. Once the presumption is rebutted, then you’re back to needing a full-blown divorce. If there’s a possibility that you’re in a common-law marriage, and you’re considering a break-up, then you might need to consider these things.
—See PROOF OF INFORMAL MARRIAGE – Tex. Fam. Code § 2.401(b)
Who Can’t Get Common-Law Married?
Not everyone can create a common-law marriage. We’re not going to cover all of the laws on who can and can’t get married, generally, but there some people who are specifically prohibited from common-law marriages.
People who are under 18 years of age, and people who are already married to someone else, cannot be parties to a common-law marriage.
So, if your partner tells you that you’re common-law married, but you never agreed to be married in the first place, then you’re probably still single. And if you say all of that out loud, then you’ll DEFINITELY be single!
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1101 Broadway, Lubbock, Texas, 79401-3303
Tel: (806) 702-4852 | Fax: (800) 985-9479
FrontDesk@MatthewHarrisLaw.com