Many couples in Texas don’t realize they may already be legally married without ever having a ceremony or obtaining a marriage license. Common law marriage, also called informal marriage, is a valid and legally recognized way to marry in Texas. If you and your partner live together, agree to be married, and present yourselves as a married couple to others, you may have established a common law marriage. Understanding how this works matters for your legal rights, property ownership, and what happens if your relationship ends. This guide explains the three requirements for establishing a common-law marriage in Texas and how to prove one exists.
Why Choose Smith & Bledsoe Family Law for Common Law Marriage Matters
When you need guidance on common law marriage issues, you want attorneys who understand Texas family law and have experience handling complex cases. The team at Smith & Bledsoe Family Law brings extensive experience to these matters. Managing Partner Christian Smith is recognized as a Super Lawyers Rising Star for 2023 and 2024, placing her in the top 2.5% of Texas attorneys. She also received the Austin Monthly 2023 Top Attorney Award and was named to the National Association of Family Law Attorneys Top 10 Under 40 in 2019. With over seven years of experience in complex family law disputes, Christian leads a team that includes Brandon Bledsoe, a partner with 16 years of trial experience, and Michael Araj, a lead litigation attorney with 13 years of experience and Super Lawyers Rising Star recognition. Our attorneys understand Texas family law and work with clients to protect their rights and interests.
What Is Common Law Marriage in Texas?
Common law marriage is a legal marriage that exists without a formal ceremony, wedding license, or government registration. Texas recognizes common law marriage as fully valid and legally binding under Texas Family Code § 2.401. Couples who establish a common law marriage have the same legal rights and responsibilities as couples who marry through a traditional ceremony. This includes rights to property division, spousal support, and inheritance. One important myth to clear up: there is no “seven-year rule” for common law marriage in Texas. You don’t need to live together for any specific length of time. Instead, Texas law focuses on three specific conditions that must all be present at the same time. When these conditions are met, a valid marriage exists, regardless of how long the couple has been together.
The Three Requirements to Establish Common Law Marriage
Texas law sets out three requirements that must all be true at the same time for a common law marriage to exist. These requirements are straightforward, but proving them can sometimes be complex. Understanding these three requirements for common law marriage is essential for anyone in a relationship that may meet these criteria.
Mutual Agreement to Be Married
The first requirement is that both partners must agree they are married to each other. This agreement doesn’t require any formal declaration or written document. The agreement can be shown through the words the couple uses or through their actions and conduct. For example, if one partner tells the other, “I want to marry you,” and the other agrees, that can establish mutual agreement. The agreement must be made with the intent to be married, not just to live together as roommates or partners. This is why understanding premarital agreements can help couples clarify their intentions before entering into a common-law marriage. A prenup agreement can also protect both parties’ interests.
Living Together as Husband and Wife
The second requirement is that the couple must live together in Texas as husband and wife. This means they live in the same household and act as a married couple would. There is no minimum time period required, meaning the couple doesn’t need to live together for any specific number of months or years. However, the cohabitation must take place in Texas. If a couple lives together in another state and then moves to Texas, the time they lived together in the other state doesn’t count toward establishing a Texas common law marriage. This is an important distinction from postmarital agreements, which are created after marriage is established.
Representation to Others as a Married Couple
The third requirement is that the couple must represent themselves to others as a married couple. This means they hold themselves out publicly as husband and wife. Examples include using the same last name, introducing each other as spouse or husband/wife, filing joint tax returns, listing each other as spouse on documents, or telling friends and family they are married. This representation doesn’t require a public announcement or formal declaration. It simply means the couple conducts themselves in a way that shows others they consider themselves married. Many couples also consider name change after marriage as part of this public representation.
How to Prove a Common Law Marriage in Texas
If a common law marriage is questioned, such as in a divorce, inheritance dispute, or insurance claim, the person claiming the marriage exists must prove it. The burden of proof falls on that person to show that all three requirements were met. Courts look at evidence to determine whether a common law marriage existed. This evidence can include testimony from the couple and witnesses, documents like joint tax returns, bank statements showing shared accounts, insurance policies listing the other person as spouse, utility bills in both names, lease agreements, or other records showing the couple lived together and presented themselves as married. The court evaluates all the evidence and decides whether the three requirements have been proven. All three conditions must be established. Meeting just one or two is not enough. Understanding how to prove common law marriage requires careful documentation and legal guidance.
Common Law Marriage and Texas Family Law
Once a couple establishes a common law marriage, they have the same legal rights and responsibilities as any married couple. Texas family law gives common law spouses the same protections and benefits. In a divorce, common law spouses divide property under Texas community property law, which generally treats property acquired during the marriage as community property owned equally by both spouses. Spousal maintenance may be available to one spouse depending on the circumstances. If the couple has children, custody and child support issues are handled the same way as in any divorce. If one spouse dies without a will, the surviving spouse has inheritance rights. Common law spouses also have hospital visitation rights, can make medical decisions for each other, and have other spousal benefits. However, to end a common law marriage, the couple must go through a formal divorce process, just like couples who had a traditional ceremony.
Frequently Asked Questions About Common Law Marriage in Texas
Is there a “7-year rule” for common law marriage in Texas?
No. This is one of the most common misconceptions about common law marriage in Texas. There is no requirement that a couple live together for seven years or any other specific time period. A couple establishes a common law marriage as soon as they meet all three requirements: they agree to be married, live together in Texas, and represent themselves to others as married. Some people may confuse this with other legal concepts, but Texas law is clear that time is not a factor. This myth often leads couples to delay seeking legal advice about their relationship status.
Can we establish a common law marriage by signing a declaration?
Texas law provides two ways to establish a common law marriage. The first is through a declaration. Both partners sign and notarize this statement to declare that they are married. This method is simpler because it creates a presumption that the marriage is valid. The second way is by proving the three conditions (agreement, cohabitation, and representation) through evidence. If you don’t have a declaration, you can still establish a common law marriage by proving these three elements, but it requires more evidence and may be more difficult to prove in court. A declaration of common law marriage creates a legal record that can be invaluable.
What happens to a common law marriage if we move out of Texas?
Texas recognizes common law marriage. However, other states may not recognize a common law marriage established in Texas. If you move to another state, that state may not acknowledge your marriage as valid under its own laws. This is why it’s important to have documentation of your common law marriage, such as a declaration or evidence of the three requirements. If you move out of Texas, consult an attorney in your new state about how that state will treat your marriage. Understanding interstate custody battles and how they relate to marriage recognition is also important.
Do we need to file anything to establish a common law marriage?
You do not need to file anything to establish a common law marriage. The marriage exists once the couple meets the three requirements. However, filing a declaration of common-law marriage with the county clerk is optional but can be helpful. A declaration creates a legal record of the marriage and makes it easier to prove its existence if questions arise later. Even without a declaration, a law marriage is valid if you can prove the three requirements. Many couples benefit from consulting with a family law attorney about whether filing is right for their situation.
Can same-sex couples have a common law marriage in Texas?
Yes. Same-sex couples can establish a common law marriage in Texas under the same requirements as different-sex couples. They must agree to be married, live together in Texas as spouses, and hold themselves out to others as a married couple. Same-sex couples have the same legal rights and responsibilities as different-sex married couples. For same-sex couples whose relationship began before the U.S. Supreme Court’s 2015 decision recognizing same-sex marriage (Obergefell v. Hodges), Texas law includes the Relation Back Doctrine. This doctrine recognizes the marriage as valid from the date the couple first met the three requirements, even if that date was before 2015. This provides important protections for property rights and other legal matters. Learn more about LGBT family law protections and proactive legal protections for same-sex couples in Texas.
Take the Next Step with Smith & Bledsoe Family Law
If you have questions about common law marriage or need help with a family law matter, Smith & Bledsoe Family Law is here to help. Our experienced attorneys understand Texas family law and work with clients to protect their rights. Contact us today to schedule a free consultation. Call (512) 277-3166 or use our contact page to speak with an attorney about your situation.