How to Determine if You Are Common-Law Married

An informal or “common-law” marriage is a marriage between two people who agree to be married, live together in Texas as spouses, and hold themselves out to others in Texas as spouses, but who have not obtained a marriage license and participated in a marriage ceremony. Informal marriages have been recognized in Texas since 1847.

There are a number of requirements of an informal marriage. The statutory elements are that both parties must:

  1. Agree to be married
  2. Live together in Texas as husband and wife, and
  3. Represent to others (“holding out”) in Texas that they are married.

Agree to Be Married

Both parties must have intended to have a present, immediate, and permanent marital relationship. This can be established with either direct or circumstantial evidence. Direct evidence can a written agreement or uncontradicted testimony by one of the parties. Circumstantial evidence would be evaluated based upon the parties’ acts, statements, and conduct. Commonly, there is no written agreement but the circumstantial evidence could include proof of living together and representing to others that the parties are married.

Other real examples of an “agreement” have included:

  • Woman’s testimony that she and man considered themselves already married, even though they planned to be ceremonially married sometime in the future.
  • Man and woman’s testimony that they agreed not to tell family members that they were legally divorced and continued to live together as a married couple.
  • Woman’s testimony that she and man had exchanged rings in a private ceremony in which the man agreed to “regard himself as her husband until they were married in a church,” and others’ testimony that man and woman told them about the ceremony.
  • Widow’s testimony that she and man had agreed to be married “in God’s eyes.”
  • Man calling woman “Mrs.,” his parents referring to her as their daughter-in-law, and woman being identified as wife in loan papers.

However, here are real examples where the court found that there was no “agreement”:

  • Man’s testimony that he promised to stay with woman through her illness.
  • Behavior that is just as consistent with courtship as with a close marital relationship (e.g., living together, holding hands, showing affection, doing “everything together,” and taking care of each other during sicknesses).
  • Man’s statement that he was engaged to woman, that she was his girlfriend, and that he did not consider them “officially married.”
  • Marriage proposal and giving of engagement ring.
  • Statements that parties were “trying out their relationship and that they would get married in the future “if everything worked out.”

Living Together

Often referred to as “cohabitation,” living together means maintaining a household and doing things ordinarily done by spouses. It is more than sexual relations under a common roof. The cohabitation does not necessarily need to be continuous. There is a case where the court found the parties met the requirement of cohabitation because they lived together “at various times” during the span of six years. The man lived in Nigeria but also lived in Texas with the woman whenever he visited the U.S. The bottomline here is that there is no bright-line rule.

Other real examples of “living together” have included:

  • Evidence that man and woman lived together for two and a half months in house they bought together.
  • Evidence that man regularly stayed at woman’s house, even though he often returned to his former home where his children from his first marriage lived.
  • Evidence that man bought a condominium for woman and their child, that the two were together in the condominium as often as man’s business permitted him to be there, that he shipped his bed to the condominium, that he kept his personal belongings at the condominium, and that he ran errands and worked around the house.
  • Testimony that man, although employed in a foreign country, visited woman and stayed with her each time he returned to Texas and that the two of them traveled together on various occasions.

However, here are real examples where the court did not find that the man and wife ”lived together”:

  • Evidence that man and woman had sex only at their parent’s houses, never spent an entire night together, never moved any personal property into a common room, and never moved in together.
  • Evidence that man and woman occupied separate rooms and had separate beds, even though they sometimes lived in the same house.

Holding Out

The parties must represent to others in Texas that they are married. There can be no secret informal marriage. If a couple’s agreement to be married is shared with only close friends or relatives and the couple acts to conceal the agreement from the community at large, no informal marriage exists. Holding out may be established by the parties’ conduct and actions; spoken words are not necessary. However, unilateral actions by one party will not constitute evidence that both parties were holding themselves out as spouses.

Real examples of “holding out” have included:

  • Evidence that couple represented in a notarized, recorded deed that they were married.
  • Evidence that couple’s conduct and reputation in the community indicated they were married.
  • Evidence that one party was named as spouse in, and made beneficiary of, the other party’s life-insurance policy.
  • Evidence that couple signed a credit application as husband and wife.
  • Evidence that man and woman signed VA home loan as husband and wife and that man included woman on his health insurance.
  • Evidence that man and woman introduced each other to friends as husband and wife and signed a wedding guest book as “Mr. and Mrs.”

However, here are real examples where the court did not find that the man and wife were “holding out”:

  • Evidence that woman introduced man as her husband to only two close friends and that she told only two or three others that she was married.
  • Evidence that woman told only close friends she was married, that couple did not celebrate the alleged marriage in any way, and that woman filed her federal income taxes as “single.”
  • Evidence that man and woman introduced each other an unknown number of times as husband and wife and that man represented couple as being married in contracts.
  • Evidence that woman referred to man as boyfriend and that man indicated he had no spouse in lease agreement conflicted with evidence that witnesses believed couple was married and that woman treated man’s son as her own.
  • Evidence that couple was listed as husband and wife on life- and auto-insurance policies and homebuyer information sheet in purchase agreement, without evidence that anyone in the community saw the forms or that the couple otherwise had a reputation for being married.

Bottomline

It may be important to your situation to determine whether you are common-law married. There are many more nuanced laws that are not discussed above. Attorney Vince Handler can provide you with a free consultation and look at your specific circumstances. Call today!