In Texas, a couple can be legally married without a formal ceremony or marriage license through what is known as common law marriage. This often leads to questions about the cohabitation time needed for the state to recognize their union.
A common belief is that living together for six months automatically creates a common law marriage. However, Texas law focuses on specific legal criteria, not just the duration of cohabitation. Understanding these requirements helps couples clarify their legal standing.
Legal Elements for Informal Unions
For an informal marriage (common law marriage) to be valid in Texas, three elements, outlined in Texas Family Code Section 2.401, must exist simultaneously.1Texas Public Law. Texas Family Code Section 2.401 – Proof of Informal Marriage
First, the individuals must agree to be married. This means a present intent to create an immediate and permanent marital relationship, not just an agreement to cohabit or marry in the future.
Second, after agreeing to marry, they must live together in Texas as spouses, which involves more than sharing a home; it means establishing a household and sharing a life as a married couple.
Third, the couple must represent themselves to others as married. This is often called holding out and includes actions like introducing each other as ‘my husband’ or ‘my wife’ or using the same last name. If any of these three elements are absent, Texas will not recognize an informal marriage, regardless of how long the couple has lived together.
Clarifying the Six-Month Requirement
A common misunderstanding is that cohabiting for a specific period, like six months, automatically creates a common law marriage in Texas. This is incorrect. Texas law specifies no minimum cohabitation duration; the legal determination depends on the presence of the three required elements.
This ‘six-month rule’ myth causes confusion. While the length of cohabitation can be supporting evidence if the other elements are present, it is not independently sufficient to establish a marriage. A common law marriage could be formed in less time if all legal criteria are met. The agreement to marry, cohabitation as spouses, and public representation as married are what establish the marriage, not a specific timeframe.
Formal Declarations and Registration
Couples can optionally formalize their common law marriage by filing a Declaration and Registration of Informal Marriage with their county clerk.2TexasLawHelp.org. Declaration and Registration of Informal Marriage Form VS-180.1 This document serves as an official record, simplifying future proof of the marriage.
Both individuals must appear before the county clerk. The form requires personal information and an attestation that they meet Texas marriage eligibility requirements (e.g., legal age, not currently married). Under penalty of perjury, they must affirm they have agreed to be married, lived together as spouses, and represented themselves as married, per Texas Family Code Section 2.402.3Texas Public Law. Texas Family Code Section 2.402 – Declaration and Registration of Informal Marriage
After completion, the declaration is filed by the county clerk for a fee.4Travis County Clerk. Recording Fee Information This recorded document serves as accepted proof of the marriage unless challenged. Filing this declaration formally registers an existing informal marriage; it does not retroactively create it. This offers more concrete proof than relying on circumstantial evidence.
Proof in Court Proceedings
If a couple’s marital status is disputed in court, the party claiming an informal marriage must prove its validity by showing all three legal elements were concurrently present. Courts assess case-specific facts to determine if a common law marriage was formed by a preponderance of the evidence (meaning more likely than not).
Evidence can be direct testimony or circumstantial. Circumstantial evidence, like joint tax returns, shared bank accounts, lease agreements naming both as spouses, or joint property deeds, is often used if one party denies the marriage. Testimony from friends and family about how the couple publicly presented themselves can also be persuasive. Conversely, tax returns filed stating the person is single can weaken the claim.
A significant rule under Texas Family Code Section 2.401 is that if legal action to prove an informal marriage isn’t started within two years of separation, a rebuttable presumption arises that no agreement to marry existed.5FindLaw. Texas Family Code – FAM § 2.401 Proof of Informal Marriage This means the court assumes no agreement was made unless strong contrary evidence is provided.
Handling Disputes and Separation
Ending a common law marriage in Texas requires a formal divorce through the court system, just like a ceremonial marriage. Simply separating is not enough. A divorce ensures that all legal matters, such as rights and responsibilities, are properly handled.
Divorce proceedings for common law marriages are similar to those for ceremonial marriages. This includes the division of property. Texas is a community property state, meaning most assets acquired during the marriage are owned equally by both spouses and are subject to a just and right division by the court.6Texas Public Law. Texas Family Code Section 3.002 – Community Property
Courts may also award spousal maintenance if certain conditions are met.7Texas Public Law. Texas Family Code Section 8.051 – Eligibility for Maintenance These conditions often include the length of the marriage (typically at least 10 years for informal marriages, with exceptions for family violence or disability) and the requesting spouse’s inability to meet their basic needs. Any maintenance awarded is subject to legal limits on amount and duration.8Texas Legislature Online. Family Code Chapter 8. Maintenance
For couples with children, the divorce will also address conservatorship (custody), possession and access (visitation), and child support.9Texas Legislature Online. Family Code Chapter 154. Child Support All decisions regarding children are made based on the best interest of the child.
Sometimes, the existence of the common law marriage itself is disputed during separation. If one person claims the marriage exists and the other denies it, a court must first rule on their marital status before dealing with property, support, or children’s issues.