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Common Law Marriage

What is a common law marriage?
A valid common law marriage is where a man and woman become husband and wife without getting a marriage license and having a marriage ceremony. Once proved, a common law marriage has the same legal effect as a ceremonial marriage.

If I have been living with someone, how do I know whether we have a common law marriage?
To have a common law marriage in Texas, the couple must:

  • Agree to be married;
  • Live together in Texas as husband and wife; and
  • Tell other people that they are married

Is there a way to get my common law marriage recognized?
A couple that wishes to formalize a common law marriage can file a Declaration of Marriage. To do this, the couple should get a form for filing a Declaration of Marriage, sign it, and file it with the County Clerk in the County where the couple lives.

Can children under 18 have a common law marriage?
No, both spouses must be adults. An adult and a child (or 2 children) cannot have a common law marriage—even if their parents give permission. In other words, no person under the age of 18 can be part of a common law marriage.

Can I have a common law marriage if I am already legally married to someone else?
No, you must end your current marriage by getting a divorce or annulment before entering into a common law marriage.

Will my common law marriage be recognized in other states?
It depends. Some states recognize the common law marriages of other states; others do not. Talk to a lawyer from the state you are planning to go to.

If we live together for a certain period of time, are we automatically in a common law marriage?
No, you must meet the requirements listed above to be in a common law marriage, no matter how long you have been living together. For example, if a man and woman verbally agree to be married, then sign an apartment lease together as husband and wife, and live together in the apartment, then they have a common law marriage. But, if the same couple did not agree to be married or did not tell somebody they were married, then the couple would not have a common law marriage even if they lived together for 50 years.

If we have children together, are we automatically in a common law marriage?
No, even if you have children together, you must also have:

  • Lived together as husband and wife;
  • Agreed to be married; and
  • Told other people that you are married

In what ways do people “hold out” that they are married?
A couple “holds out” that they are married by telling others that they are married. Examples of telling other people you are married include:
– Introducing yourselves as a married couple; or
– Doing something that made people think you were married like signing credit applications as a married couple.
Even if you said that you were married only one time, you can meet this requirement.

Is there a deadline to ask the Court to recognize my common law marriage?
Yes, since most people ask a Court to recognize a common law marriage when the couple needs to get a divorce, the deadlines run from the time a couple separates, that is, from the time the couple stops living together. Generally, a couple has two years after they stop living together to ask a Court to recognize their common law marriage. If more than two years passes after the couple stops living together, the Court will assume there was no agreement to be married. The marriage can still be proved, but it will be more difficult to show.

Can I get a protective order against an abusive common law spouse?
Yes, if you are or were living with a violent person who hurt you or threatened to hurt you, you can ask for a protective order.

What if I don’t want to be married to my common law spouse anymore?
You should get a divorce. Getting a divorce is the same as with other marriages except the couple must first prove to the Court that they were married. The person that first files papers with the Court has to prove that there was a common law marriage.

How do I prove to the Court that I had a common law marriage?
You have to show the Court proof that (a) you agreed to be married; (b) you lived together as husband and wife; and (c) you held yourself out as being married. One way of proving those things is to have a recorded declaration of marriage. A declaration of marriage is a form that is filed with the County Clerk’s Office in your county that says you are married. Another way is to use tax returns, a lease, an insurance policy, or other agreements that you signed as a married couple. Or, you can bring people to Court who will say that you were married.

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