People often appear in my office and tell me that they are “common-law married.” Further conversation usually shows that they are not, but thought they were because of misunderstandings of the law and acceptance of what others have told them.
Texas does recognize informal or “common-law” marriages. In order to show that such a marriage exists, you must meet three requirements.
- First, you must both have had the intent to be married. Not to get married someday, but to be married right now. In other words, you can’t get married by accident—you have to enter into this relationship, as a marriage, on purpose.
- Second, after forming that intent, you must have lived together as husband and wife in Texas. So if you formed the intent to be married and after that you lived together in Louisiana, but not in Texas, you do not have an informal marriage in Texas. There is no time frame for this. Often people believe that if they have lived together for six months, they are married. This is not correct—again, you can’t get married by accident! Note that you also have to live together as husband and wife. If you’ve been living in the same house but not sharing a room, you may not have a marriage.
- Finally, you must have presented yourself to others as husband and wife. There are numerous ways this could be shown: you refer to your partner as “my husband” or “my wife.” You use the same last name. You have joint bank accounts. You name each other as a spouse on your company health insurance. You file your taxes as married. Other people need to think you’re married, based on your behavior.
These three requirements must all be met at the same time. Failure to meet any one of them will defeat a claim of common-law marriage. OR, you can use Step #4:
- This is an optional step: you can register, with the county clerk, a Declaration of Informal Marriage.
You cannot enter into an informal marriage if you could not, legally, have entered into a formal marriage. You cannot marry a close relative (first cousin or closer). You can’t marry your step-parent (or step-child). You can’t get married if you are underage. You can’t get married if you are still legally married to someone else.
If it is determined that you do, in fact, have a common-law marriage but you don’t want to be married any more, can you just walk away?
A marriage is a marriage. There is no such thing as a common-law divorce. If you have established a common-law marriage, the only way “out” is through a divorce or an annulment.
***THE ABOVE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. YOUR CIRCUMSTANCES MAY BE DIFFERENT. THIS INFORMATION SHOULD NOT BE CONSIDERED LEGAL ADVICE***