Family Law Dictionary: Common-Law Marriage

Yes, there is common-law, or informal, marriage in Texas. However, it isn’t simply living together that creates an informal marriage. In Texas, there are four elements that must be met in order to establish an informal marriage. First, the people involved must agree to be married from that moment forward, not at some point in the future. An engagement with the intent to marry in the future is not sufficient to satisfy this element. The agreement to be married can be oral or written and can be proven by either direct or circumstantial evidence. Second, the people involved must live together in Texas as husband and wife. This cohabitation means maintaining a household and doing those things ordinarily done by a husband and wife, not just residing under a common roof and having sexual relations. The third element is “holding out” to others in Texas that they are married. So, parties that agree to be married and live in the same home but do not tell the public at large that they are married are not deemed to be informally married. “Holding out” is not only exhibited by words alone, but also actions. A woman changing her last name to the man’s last name can constitute “holding out.” Another example of “holding out” is signing a credit application as husband and wife, or even a wedding guest book as “Mr. and Mrs. Smith.” Fourth, the people involved must have the capacity to enter into an informal marriage. In order to have capacity to enter into an informal marriage, they must be members of the opposite sex, at least 18 years of age and not related to each other as prohibited by the Texas Family Code.

An informal marriage begins when all these elements are satisfied and the parties have the capacity to marry. There is no informal divorce; an informal marriage must be dissolved in the same manner as a traditional, ceremonial marriage — divorce. Informal marriages have the same legal consequences and effects as a ceremonial marriage.

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