Texas is unique in many ways, and our family code is certainly no exception. We are the only state in the country that allows people to be considered common-law married and while also assuming that all property acquired by the common law married couple is community property on the date of divorce. This means that a married couple who meet the conditions for common-law marriage could find themselves in divorce court dividing their assets and debts without ever having been to the altar or JP.
So, what exactly is a common-law marriage, and how do you know if you’re in one? Under the current Texas Family Code, only a man and a woman are considered legally married under certain if certain conditions are present. First, there must be agreement to be married. In other words, the parties must have the intent to have a present, immediate and permanent marital relationship between them. An agreement remarried in the future is simply not enough. Second, the couple must live in Texas as husband and wife. This is often referred to as cohabitation, not be confused with a consummation of the marriage. It’s more than just having sexual relations under common roof. Essentially, the couple must live together as spouses and maintain household. However, the cohabitation of the spouses does not have to be continuous but the length of time at the residence could be a factor to consider. Other elements that might be important to prove the cohabitation element include whether there are bills in the name of both parties that come to the residence, if other occupants are living at the residence, personal belongings that the parties may keep at the residence and whether the residence is owned by both parties or if a lease is in both parties name.
Finally, the third element to prove a common-law marriage exists relates to whether the parties hold themselves out to others as husband and wife. In other words, they must represent to others in Texas that they have a marriage together. This must be open and transparent to the community and not just to their close friends and family. Moreover, the representations must be made by both parties. For example, references to one another as my spouse, or my husband, and a company picnic are important factors. Equally important would be the use of a common last name for any children.
Of course, in order for a common-law marriage to be valid, neither party can be legally married to someone else. Nor can the two parties be related to each other as would make any other traditional marriage void in Texas as well. Both parties must be at least 18 years of age.
Currently, the statute relating to common-law marriage refers to “husband and wife” and this does not conform with the most recent United State Supreme Court ruling in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) which made same-sex marriages legal throughout the country. It is presumed by many family law attorneys in Texas that the state legislature will modify the current law relating to common-law marriage in order to cover same-sex couples. If this does occur, it is expected that while the elements to established common-law marriage will not change, the factors necessary to prove the marriage in the event one “spouse” seeks to divorce the other will prove critical to success in the case. For example, how can a same-sex couple have a present, immediate agreement to be married prior to the date upon which it was first legalized by the Supreme Court? With their common-law marriage become valid only on the date the court made its ruling, despite the fact the couple had been cohabitating for years before? Alternatively, with the common-law marriage exist between them only on the date that Texas successfully in acts and modifies its common-law marriage statutes? These are but a few of the variants to questions they’re going to arise and fill our courts of appeal for years to come until a definitive and established set of rules and principles are known.
If you are contemplating a separation or divorce from a common-law spouse, and these issues are relevant to your case, I encourage you to seek out the advice of a family law attorney to discuss your options and strategy moving forward. At Musemeche Law, PC, we have nearly three decades of family law and trial experience. Give us a call today at (281) 809-9757 to schedule an appointment.