Common Law Marriage More Common Than You Think

Common Law Marriage More Common Than You Think


Texas is one of a number of states that still recognize that a man and woman can have a marriage even though they never had a ceremony or a marriage license. There are many misconceptions about what it takes to have a common law marriage, technically called an “informal marriage” in Texas.
Several times in the past few years our firm has been involved in cases where someone alleged an informal marriage in a family law proceeding. Being married, even informally, can have lots of advantages when it comes to ending a relationship between a man and woman, regardless of whether children are involved. If children are involved, having a marriage, even an informal one, has the advantage of making the children legitimate. Quaint as it may seem in our times, the public policy of the State of Texas is to legitimize a child where possible, even though almost half of children being born now are to single mothers and modern society seems not to punish children who were born out of wedlock.
The advantages of being married, compared to just “living together,” have everything to do with the community property laws. As a community property state, a husband and wife in Texas own all of their marital property as a “community,” meaning they both have an ownership interest in all of the property they have acquired since the marriage began unless a specific rule makes it “separate” property. This can be a great benefit to one party or the other in a family law proceeding when it comes to the court dividing property after a couple separates. If a man and woman are not “married” (formally or informally), then they have no “community” property. Any property they own is either the sole property of one or the other, or, if they indeed do each own part interest in an item, they own it as tenants in common. Let’s take an example.
Joe and Sharon dated for several months and decided to live together. At the time they moved in together, Joe owned a pickup truck and Sharon had a car. They each had separate bank accounts, they each were employed making their own money, and they had their typical personal possessions. After a year they decided to buy a house. Joe, being cautious, bought the house solely in his name but Sharon’s monthly wages helped pay the mortgage. They stayed together for five years and had a son, Joe, Jr. Over the five years they each bought new automobiles in their own names. But over the five years they co-mingled their income and used their combined incomes to pay the car notes, mortgage, utilities, repair and upkeep, etc. After five years they decided to separate.
In this situation, assuming they never were “married,” Sharon could be at a great disadvantage. She has used her income to contribute to the most valuable asset of the union – the house. But without a marriage she may have no more than an equitable claim in the house because it is not in her name and she has no homestead rights as a spouse. The most she could expect is some reasonable reimbursement for her contribution to the equity in the house, IF SHE CAN PROVE THE VALUE OF HER CONTRIBUTION. That may be difficult without receipts, cancelled checks, etc.
However, if Sharon can prove that she and Joe had an informal marriage, the house would be their community property and she wouldn’t have to provide complicated evidence of a much more tenuous interest in the house. The same rule applies for other potentially valuable marital assets, such as retirement accounts, bank accounts, etc. Because even though such things may be held in the name of only one party, it is still community property and the court can divide it in a manner that is “just and right” as opposed to trying to figure out difficult ownership percentages.
So what does it take to have an informal marriage? Texas provides two avenues. First, under the Family Code, a couple can file a “Declaration of Informal Marriage” with the County Clerk on a form provided by the clerk. It sets forth most or all of the information required for a marriage license, but it allows the couple to designate a date on which the marriage began (the couple can essentially “backdate” their marriage). This procedure could have great legal significance for establishing marital property rights, especially in an expected probate dispute, or whether a child born to the couple at an earlier time is legitimate.
The second avenue is for one of the parties to allege the informal marriage as part of a court proceeding, typically as part of a divorce or probate proceeding. There are several requirements:

1. There must be no legal impediment to the marriage (such as one of the parties is already married to someone else, even if separated for many years, or one of the parties is under-aged, or one of the parties is mentally incapacitated);

2. The parties must have a present agreement to be married (as opposed to an agreement to get married at some point in the future)

3. The parties must cohabit together as husband and wife in Texas;

4. The parties must represent to others in Texas that they are married; and

5. The party alleging the marriage must initiate the court action within two years of the last time the parties actually cohabited as husband and wife.

Numbers 2, 3, 4 and 5 are statutory in nature and come from the Texas Family Code. Item 1 stems from case law and interpretations of other Texas statutes that prohibit a person from being married to more than one person at a time (the anti-bigamy statute in the Texas Penal Code). Item 1 is also pretty simple. Either someone has the capacity to marry or they do not. If they were previously married to someone else, you have to prove that previous marriage was legally ended, either by annulment, divorce or death.
Item 2 is the most often disputed in court cases, especially where one party is claiming to be married to the other party in a family law proceeding. One party claims the marriage existed and the other denies it. The agreement is almost never in writing (unless perhaps stated in a love letter), so it is one party’s word against the other party’s word. To get past this hurdle, Texas courts have held that proof of Items 3 and 4 (cohabiting and representing to others) can be used as proof of the agreement, even where one party denies the agreement.
Cohabiting is usually pretty simple. The couple sets up housekeeping together and have conjugal relations. Having children together while living together will pretty much cinch that issue from an evidentiary standpoint.
One of the other most litigated issues is whether the parties represented to others that they were married. Isolated acts of calling the other person “my wife” or “my husband,” or failing to correct others when they refer to the couple as being married, is usually not enough, although that certainly helps. The best evidence of holding out is filing government documents that represent the couple as being married, such as joint income tax returns, or buying titled merchandise together and listing both as owners, buying land or a house together and stating in the title documents that the couple is “husband and wife,” or listing the other person as a spouse on hospital admission forms or insurance applications. Merely checking into a motel as “Mr. and Mrs. Smith” on one occasion will not do it (contrary to what a lot of people believe). The more acts of holding out that are present, the more likely it is that a court will find that a marriage existed.
Recognizing informal marriages greatly benefits parties and the courts, especially in this modern day when many couples simply decide to live together, stay together many years, and then decide to end their relationship. For all practical purposes they are married and courts go to great effort to recognize that conclusion. But it still requires evidence and proof.