Common Law Marriage in Texas 1

In: Texas

A guest article by Scott Morgan of Morgan Law Firm in Houston, TX

Texas common law marriage is one of those issues that lay people think they understand, but very rarely is their understanding of the law on this issue correct. In this article I will outline exactly what Texas law requires in order for a couple to be common law married.

Requirement #1: Cohabitation

The Texas statute requires that the parties physically reside together. This is by far the easiest of the elements to prove. Rarely is there a dispute over whether a couple actually lived together.

Requirement #2: Agreement to Be Married

This element requires that the parties literally and explicitly agree with each other that they are married. This is not to be confused with discussions of a future time when they will get married. An engagement to be married is not the same thing as an agreement to be married. In the former you are planning to get married at some future date, while in the latter you are agreeing that you are presently married to each other. This is an important legal distinction and this element usually results in a swearing match between the parties, with one saying they had such an agreement and the other denying it.

Requirement #3: Holding Each Other Out as Married

The final element and the one on which most cases hinge is the element of “holding out” to others as a married couple. This can be something as simple as introducing the other person to a third-party as your spouse. Often cases come down to which witnesses the judge believes about this issue. A cleaner and more obvious way that holding out can occur is when a party lists the other person as a spouse on an insurance policy application or they file a joint tax return as a married couple.

So it is much more difficult to be common law married than many people think and requires significantly more than simply living together for some prescribed period of time.

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Discussion

  • I’ve always thought that common law marriage makes a lot of sense. It’s the way our ancestors did it, and it worked for them. Somehow our society has gotten persuaded that the only way to be really married is to have a huge, expensive ceremony. Advertisers and the media have played a huge part in this perception, and it has been quite lucrative for them. Common law means you’re just as legally married without going to all the fuss and expense. The common law couples I have known have been just as committed to each other as couples who went all out for their nuptials.