An informal marriage, often called a common law marriage, is a legally recognized marital union in Texas established without a formal ceremony or a marriage license. If the specific legal requirements are met, the state considers the couple to be just as married as a couple who had a traditional wedding. The establishment of this type of marriage depends entirely on the couple’s actions and their agreement to be married.
What Constitutes a Common Law Marriage in Texas
In Texas, a common law marriage is legally referred to as an “informal marriage” under the Texas Family Code. It is not a secondary or lesser form of marriage and, once established, entitles individuals to the same legal protections as any other married couple. The foundation of an informal marriage rests on the conduct and mutual understanding of the two individuals involved. The law looks at how the couple lives and presents themselves to the public to determine if a marriage exists, based solely on their intent and behavior.
The Myth of the Six-Month Rule
A widespread misconception is that living together for a specific period, such as six months, automatically creates a common law marriage in Texas. This is false, as no time requirement in Texas law establishes an informal marriage on its own. While cohabitation is a necessary component, its duration is just one piece of evidence a court might consider. A couple could live together for many years and not be considered married if they do not meet the other legal requirements. The focus is on the couple’s intent, not on how long they have shared a home.
Required Elements for a Valid Texas Common Law Marriage
To legally establish a common law marriage in Texas, three elements must be proven to exist at the same time. The first is that the couple must agree to be married. This requires a present and immediate intent to be a married couple, not a plan to get married in the future, so an engagement does not satisfy this requirement.
Second, after agreeing to be married, the couple must live together in Texas as spouses. This means more than just sharing a residence; it involves cohabitating in a manner that reflects a marital relationship. The third element is that the couple must represent to others in Texas that they are married. This is often called “holding out” to the public and can include introducing each other as a spouse, filing joint tax returns, or listing each other as a spouse on official documents.
All three of these conditions must be met simultaneously for the marriage to be valid. Additionally, both individuals must have the legal capacity to marry, meaning they are at least 18 years old, not currently married to anyone else, and not closely related.
Information Needed for a Declaration of Informal Marriage
For couples who wish to formally document their common law marriage, Texas law provides a method to do so by filing a “Declaration of Informal Marriage.” This legal document serves as official proof of the marriage. Filing this declaration provides strong evidence that the marriage exists and establishes a legal date of marriage, but it does not create the marriage itself.
To complete the declaration form, which can be obtained from any Texas county clerk’s office, both parties must provide:
- Full names
- Current addresses
- Dates and places of birth
- Social security numbers
The form requires a sworn statement that the couple has met the legal requirements for an informal marriage. The couple must also state the date on which their common law marriage began. Both parties must sign the document, and their signatures must be notarized.
Filing Your Declaration of Informal Marriage
Once the Declaration of Informal Marriage form is completed and notarized, the next step is to file it with the county clerk. This can be done in any county in Texas, regardless of where the couple resides. Both individuals must appear together at the clerk’s office to submit the document.
Upon submission, a filing fee is required, which varies by county but is approximately $30 to $50. After the fee is paid, the clerk will record the declaration and provide the couple with a certified copy.1Texas.Public.Law. Texas Family Code Section 2.404 – Recording of Certificate or Declaration of Informal Marriage This copy then serves as conclusive proof of the marriage and can be used for all legal purposes.
Legal Consequences of Being in a Common Law Marriage
Once established, a common law marriage carries the same legal weight as a ceremonial marriage, meaning the spouses have identical rights and responsibilities. Texas community property laws apply, so most assets and debts acquired during the marriage are considered jointly owned and would be divided upon divorce.2Texas.Public.Law. Texas Family Code Chapter 3 – Marital Property Rights and Liabilities
Spouses in a common law marriage also have inheritance rights. If one spouse dies without a will, the surviving spouse is legally entitled to a portion of the deceased’s estate.3Texas Legislature. Estates Code Chapter 201. Descent and Distribution Other consequences include the potential for court-ordered spousal support and eligibility for benefits like health insurance or Social Security survivor benefits.
A common law marriage cannot be informally ended by simply separating; it must be legally dissolved through a formal divorce proceeding, just like a ceremonial marriage.4Texas.Public.Law. Texas Family Code Chapter 6 – Suit for Dissolution of Marriage
There is a time limit to prove the marriage existed after the relationship ends. If a legal proceeding to prove a common law marriage is not started before the second anniversary of the date the couple separated, the law will presume that they had not agreed to be married.5Texas.Public.Law. Texas Family Code Section 2.401 – Proof of Informal Marriage Overcoming this presumption is difficult, making it important to act within the two-year timeframe to protect your rights.