Common Law Marriages: What They Are (and Aren’t)

The good news about common law marriage in Texas is that there’s a specific statute that defines what constitutes a common-law marriage. And yet, there’s a weakness in the statute that makes some people – who do not consider themselves to be legally married – vulnerable to common-law divorce suits.

To be considered married under the common law provisions in Texas, a couple must meet three criteria. First, they have to have lived together – typically, it would be for a significant period of time (because this would also show at least one of the other two criteria), though I know of one Texas case where a couple was only living together for three days and met this criterion! Normally, the residence in which they both live would have to be considered both parties’ primary residence, so that there is no question that they are “living together”.

Second, they have to agree that they are married, which can be hard to prove or disprove in court. It would seem strange for two people to “agree we are married” on a particular day or time, especially when they can fairly easily obtain a marriage license and find a qualified judge or member of the clergy to marry them.

Third, the person claiming the marriage must prove that they held out to others in the community that they were married. This can be shown by changing names, saying “this is my wife/husband”, or calling the other party by a name associated with marriage (like Mrs. Smith). Also, If a man introduces his significant other who he’s living with as his wife, then it can be proved that there was an agreement to be married, even without specific proof of a specific agreement. It’s, in fact, a squishy area of the law that sometimes comes down to he said/she said situation. And, in some cases, a jury might find the relationship in question to be a common-law marriage just because it’s what they perceive as the fair thing in that particular situation.

Interestingly enough, the intent to get married and having a marriage in the planning stages is good evidence to disprove the existence of common-law marriage. If a couple has a wedding date planned and if they’ve sent out invitations, these can actually be used to show that while the couple has the intention to married, they are still legally single as it pertains to a common law case.

Why would someone claim common law marriage just to get divorced? In cases I’ve worked with – including cases involving professional athletes and other high-net-worth individuals – it typically involves the end of a longer-term relationship, often with a child of the two parties. If a couple is living together and has a child together while they’re involved, the custodial parent is only able to receive a relatively nominal amount in child support, while the other parent will normally keep all of the assets accumulated during their relationship. But if that party can prove that a marriage existed, then from the date of the agreement to be married, he or she will share in the assets which were accumulated.

Given that it’s relatively easy to get married in Texas, I’m not convinced that common law marriage is necessary. Couples decide to stay together without getting married for a variety of reasons, and if a couple really does want to get married, obtaining a license and finding an officiant is relatively inexpensive and simple. But as long as common law marriage is legal in Texas, couples who move in together should be aware of the legal provisions around such an arrangement – particularly if one of the people in the relationship has significant assets.

(In my next blog article, I’ll talk about specific strategies that can help prevent breakups for cohabitating couples from becoming common law divorce cases.)