Common Law Marriage
Compliments of the Travis County Young Lawyer Associations
Q: My common law husband and I have been living in Texas and now want to validate our common law marriage so that it is legally recognized. How do we do that?
- A: You can record a form prescribed by the Bureau of Vital Statistics which is available at your county clerk's office.
Q:If I end up going to court to prove up a common law marriage, what will I need to show?
- A: You will need to prove up the elements of the common law marriage doctrine as outlined elsewhere in this article. In order to do this, you must show evidence on each point. Your own testimony can be evidence of the existence of a common law marriage; for example, you can testify that your partner introduced you in social situations as his wife, or that you introduced him as your husband. Other people can also testify to the same effect. In addition, you can ask the court to consider documents which reflect that you and your partner held yourselves out to the world as being married. Typical documents presented in these types of cases include leases signed as husband and wife, tax returns filed jointly as a married couple, and insurance policies listing one person as the other person's spouse.
Q: Are common law marriages recognized in other states?
- A: Not all states have laws like those in Texas which allow persons to marry legally without going through a licensing procedure and marriage ceremony. If you are considering moving to another state, or if you think you may have entered into a common law marriage in another state because of your actions in that state, you should seek legal counsel from a family law attorney in the state which you are interested in.
Q: I have heard that if we live together for a certain period of time, we are automatically in a common law marriage whether or not we tell anyone we are married. Is that true?
- A: No. You must satisfy the three-part test described elsewhere in this article to be in a common law marriage, no mater how long you have been living together.
Q: If we have children together, are we automatically in a common law marriage?
- A: No. You must satisfy the three-part test described elsewhere in this article to be in a common law marriage,even if you have had children together.
Q: He has introduced me as his wife, although I have not introduced him as my husband. We have not taken any other actions that would hold us out to the world as being married. Are we in a common law marriage?
- A: It depends on whether you tried to correct the impression that you were married. If you did, you may have some argument that you had not agreed to be married. But if you knew that you were being introduced in this fashion and did nothing to correct the impression that you were married, you may well be in a common law marriage.
Q: Do we have to hold ourselves out to the world consistently as husband and wife in order to be in a common law marriage?
- A: No. Even one instance of publicly declaring yourself married can be sufficient to place you in such a marriage.
Q: Does being in a common law marriage have the same legal effect as being in a marriage where you had a license and a ceremony - for example, with regard to community property and child custody?
- A: Once the common law marriage is legally established and in existence, yes.
Q: Can I get a protective order against an abusive common law spouse?
- A: Yes, if you are in or have been in a household with a violent person and there are recent incidents of violence or serious threats of violence. Being in a common law marriage does not prohibit you from requesting a protective order.
Q: What makes a common law marriage?
- A: Three elements must be present to form a common law marriage in Texas.
First, you must have "agreed to be married."
Second, you must have "held yourselves out" as husband and wife. You must have represented to others that you were married to each other. As an example of this, you may have introduced you partner socially as "my husband," or you may have filed a joint income tax return.
Third, you must have lived together in this state as husband and wife.
Q: How can I get out of a common law marriage?
A: Common law marriage may end in two ways. If there have been children or if property and debts remain undivided, you will want to seek a formal divorce. In a divorce, paternity, custody, support, and visitation can be determined, and debts and community property can be divided.
Under a new provision of the Family Code, either partner in a common law marriage has two years after you split up to file an action to prove that the marriage did exist. In order to fit into this provision, you must have separated after September 1, 1989.
Both partners in a common law marriage are responsible for debts and for care and support of children of the marriage. It is therefore urgent that you discuss the ending of this marriage with an attorney. You have a choice of methods, but they all require you to act within a certain length of time. However, even if the time has expired for you to obtain a divorce, other steps can be taken to get orders for payment of child support and visitation for children of the marriage.
Last Modified: Tuesday, October 19, 2010 9:27 AM