Many people assume that living together for a certain number of years automatically creates a common law marriage. That is not the law in Texas.
Texas recognizes what is commonly called a common law marriage, but Texas statutes generally refer to this type of relationship as an informal marriage or a marriage “without formalities.” Under Texas Family Code Section 2.401, an informal marriage may be established when the parties meet specific legal requirements.
For people who have lived together without a traditional wedding ceremony, understanding these requirements can be important. Marital status can affect divorce proceedings, property rights, inheritance issues, financial interests, and other family-law matters.
What Is a Common Law Marriage in Texas?
A common law marriage in Texas is a legally recognized marriage that can exist without a traditional marriage ceremony when the requirements for an informal marriage are satisfied.
Texas Family Code Section 2.401 provides two ways an informal marriage may be established for legal purposes:
- The parties sign a Declaration and Registration of Informal Marriage; or
- The marriage is established through evidence that the parties agreed to be married, lived together in Texas as a married couple after that agreement, and represented to others that they were married.
This means that simply living together does not automatically make two people legally married in Texas.
A couple may share a home, have children, combine finances, or remain in a long-term relationship without satisfying the legal requirements for an informal marriage.
What Are the Requirements for Common Law Marriage in Texas?
Under Texas law, three central elements are important when proving an informal marriage through evidence.
1. The Couple Must Agree to Be Married
The parties must have actually agreed to be married.
This requirement is different from simply agreeing to live together or being in a committed relationship. The issue is whether the parties intended and agreed that they were married.
Evidence concerning the parties’ statements, conduct, communications, financial arrangements, and other circumstances may become relevant if the existence of the marriage is disputed.
For example, a couple may live together for many years but never agree that they are married. In that situation, the length of the relationship alone does not establish an informal marriage.
2. The Couple Must Live Together in Texas After the Agreement
After agreeing to be married, the parties must live together in Texas as a married couple.
The timing is important. The statute describes an agreement to be married followed by living together in Texas as husband and wife.
Simply having lived together before deciding whether to marry does not automatically satisfy this requirement.
The surrounding facts may become particularly important when the parties disagree about when, or whether, they agreed to become married.
3. The Couple Must Represent to Others That They Are Married
The parties must also represent to others that they are married.
This is sometimes described as “holding out” as married.
The representation may appear in different forms depending on the circumstances. Evidence could include how the parties described their relationship to family members, friends, employers, insurance companies, financial institutions, government agencies, or other organizations.
Potential documentation may include:
- Tax records
- Insurance documents
- Lease or mortgage records
- Financial records
- Employment or benefits records
- Written communications
- Beneficiary information
- Other documents identifying the parties as spouses
No single document automatically establishes an informal marriage. The evidence must be considered in light of the legal requirements and the circumstances of the relationship.
The Texas State Law Library identifies the same three core requirements: agreement to be married, living together in Texas after the agreement, and representing to others that the parties are married.
Is There a Minimum Number of Years for Common Law Marriage in Texas?
No.
Texas law does not say that a couple becomes common law married after living together for a specific number of months or years.
This is one of the most common misconceptions about common law marriage.
For example, living together for five, ten, or twenty years does not automatically create an informal marriage. The legal requirements still must be satisfied.
Likewise, a couple’s relationship does not become a common law marriage simply because they share a residence or have children together.
The important issue is whether the legal requirements for an informal marriage were met.
Does Having Children Together Create a Common Law Marriage?
No.
Having a child together does not automatically create a common law marriage in Texas.
Parentage and marital status are separate legal questions. Two people can have children together without being married, just as two people can potentially establish an informal marriage without having children.
If a dispute involves both marital status and children, issues such as child custody, conservatorship, possession and access, and child support should be evaluated separately from whether an informal marriage existed.
Can Same-Sex Couples Have a Common Law Marriage in Texas?
Yes.
Texas recognizes informal marriage for same-sex couples as well. The Texas State Law Library explains that common law marriage is available to same-sex couples following the U.S. Supreme Court’s recognition of the constitutional right of same-sex couples to marry.
The specific facts surrounding the relationship can still matter when determining whether the statutory requirements for an informal marriage were satisfied.
How Do You Prove a Common Law Marriage in Texas?
Proving an informal marriage can become more complicated when one person claims that a marriage existed and the other person disagrees.
Evidence may include documents and information showing:
- The parties agreed to be married
- They lived together in Texas after the agreement
- They represented themselves to others as married
- They identified one another as spouses
- They made financial or personal decisions consistent with being married
For example, tax records or insurance policies may help demonstrate how the parties represented their relationship. A lease may help establish shared residence. Written communications may provide evidence concerning how the parties described their relationship.
However, evidence of cohabitation alone does not necessarily prove an informal marriage.
The Texas State Law Library specifically identifies tax returns, lease agreements, and insurance policies as examples of documents that may help prove a common law marriage.
Can You Register a Common Law Marriage in Texas?
Yes. Texas provides a formal process for documenting an informal marriage.
The parties can complete a Declaration and Registration of Informal Marriage through the appropriate county clerk.
Texas Family Code Section 2.402 establishes requirements for the declaration, while Section 2.404 addresses recording the declaration or certificate. An executed declaration or certificate recorded under the statute is prima facie evidence of the marriage.
The Texas Department of State Health Services currently provides the Declaration and Registration of Informal Marriage, Form VS-180.1, for county clerk use.
This process can provide an official record of the informal marriage. However, people should make sure they understand the legal requirements before signing a declaration because the document represents that the parties are married.
What If Only One Person Says There Was a Common Law Marriage?
A dispute can arise when one person claims that an informal marriage existed and the other person denies it.
In that situation, the issue may need to be established through evidence in a legal proceeding.
The court may consider evidence relating to the statutory requirements, including whether:
- The parties agreed to be married;
- They lived together in Texas after the agreement; and
- They represented to others that they were married.
The existence of a long-term relationship does not automatically resolve the dispute.
Similarly, referring to someone informally as a “husband,” “wife,” or “spouse” may be relevant evidence, but the overall circumstances still matter.
Is There a Two-Year Rule for Common Law Marriage in Texas?
Yes, and this is an important issue for people who have separated.
Texas Family Code Section 2.401(b) provides that if a proceeding to prove an informal marriage under Section 2.401(a)(2) is not commenced before the second anniversary of the date the parties separated and ceased living together, there is a rebuttable presumption that the parties did not enter into an agreement to be married.
This does not mean that every claim automatically becomes impossible exactly two years after separation. Instead, the statute creates a rebuttable presumption under the circumstances described by the law.
Because timing can matter, someone who believes they were in a common law marriage should not delay getting legal guidance after separation.
The Texas State Law Library also highlights this two-year rule in its current explanation of Texas common law marriage.
What Happens to a Common Law Marriage When the Couple Separates?
A valid informal marriage is still a marriage.
Simply moving out or ending a relationship does not necessarily terminate the legal marriage.
If an informal marriage exists, the parties generally need to address the marriage through the legal divorce process if they want to formally end the marital relationship.
The Texas State Law Library explains that couples who want to end a common law marriage must file for divorce, just as couples in a formal marriage do.
This can become especially important when the parties have property, debts, children, or other legal interests that need to be addressed.
Does Common Law Marriage Affect Property Rights?
Potentially, yes.
If an informal marriage is legally established, marital-property issues may become relevant in a subsequent divorce.
Texas is a community-property state, and the characterization and division of property can depend on the specific circumstances, including when and how property was acquired and whether it is separate or community property.
A dispute over whether an informal marriage existed can therefore have consequences beyond simply determining whether the parties should be described as married.
If property, retirement accounts, real estate, financial accounts, or debts are involved, it is important to evaluate marital status and property issues together with a qualified Texas family law attorney.
Does Common Law Marriage Require a Divorce?
If a valid informal marriage exists, generally yes.
A common law marriage is not simply a dating relationship that ends when the parties stop living together.
The Texas State Law Library explains that couples who are in a common law marriage and want to end the marriage must file for divorce.
A divorce may also involve other issues, including property division, conservatorship and possession of children, child support, and other matters depending on the circumstances.
Common Law Marriage vs. Living Together in Texas
It is important to distinguish between cohabitation and informal marriage.
| Living Together | Common Law Marriage |
|---|---|
| Sharing a residence | Requires specific legal elements |
| Does not automatically create marriage | Can establish a legally recognized marriage |
| No agreement to marry is necessarily required | Agreement to marry is required |
| No requirement to represent yourselves as married | Representation as married is required |
| Relationship may end without divorce | A valid marriage generally requires divorce |
The key takeaway is simple: living together is not the same as being legally married.
When Should You Speak With a Texas Family Law Attorney?
Legal advice may be helpful if you are uncertain about your marital status or if another person disputes whether an informal marriage existed.
Consider speaking with a Texas family law attorney if:
- You and your partner lived together for an extended period.
- You believed you were legally married but never had a traditional ceremony.
- Your former partner claims you were married.
- Your former partner denies that a marriage existed.
- You have significant property or financial interests.
- You have children together.
- You recently separated.
- You are approaching the two-year anniversary of your separation.
- You are unsure whether you need to file for divorce.
- You need help determining what evidence may support an informal-marriage claim.
A Texas family law attorney can review the specific facts of your relationship and explain how the applicable law may apply.
Common Law Marriage in Texas: Frequently Asked Questions
Is common law marriage legal in Texas?
Yes. Texas recognizes common law marriage, which Texas law generally describes as an informal marriage or marriage without formalities.
How long do you have to live together to be common law married in Texas?
There is no specific number of years that automatically creates a common law marriage. The statutory requirements must be satisfied.
Does living together for seven years make you common law married in Texas?
No. Texas does not automatically create a common law marriage based on a specific number of years of cohabitation.
Does having a child create a common law marriage?
No. Having a child together does not automatically establish an informal marriage.
Do both people have to agree that they are married?
The statutory requirement includes an agreement to be married. If the existence of that agreement is disputed, evidence may become important in determining whether an informal marriage existed.
Can you register a common law marriage in Texas?
Yes. Texas provides a Declaration and Registration of Informal Marriage process through the county clerk.
What documents can help prove a common law marriage?
Depending on the circumstances, tax records, lease agreements, insurance policies, financial records, written communications, and other evidence may help demonstrate the required elements.
What is the two-year rule for common law marriage in Texas?
If a proceeding to prove an informal marriage under Texas Family Code Section 2.401(a)(2) is not commenced before the second anniversary of the parties’ separation and cessation of living together, the law creates a rebuttable presumption that they did not enter into an agreement to be married.
Do you need a divorce to end a common law marriage?
Generally, yes. If a valid informal marriage exists, the parties generally must use the divorce process to legally end the marriage.
Final Thoughts
A common law marriage in Texas is not automatically created by living together for a certain number of years. Texas recognizes informal marriages when the applicable legal requirements are satisfied.
For an informal marriage established through evidence, the central requirements are an agreement to be married, living together in Texas after that agreement, and representing to others that the parties were married.
The distinction between cohabitation and marriage can become especially important when a relationship ends. Property, financial interests, children, and other family-law issues may depend on whether a legally recognized marriage existed.
If you are unsure whether your relationship qualifies as a common law marriage in Texas, or if your former partner disputes your marital status, consider speaking with a qualified Texas family law attorney before taking action.
Legal Disclaimer: This article is provided for general informational and educational purposes only and does not constitute legal advice. Texas family law can depend on the specific facts and circumstances of Daniel Ogbeide Law. For advice about your particular circumstances, consult a qualified Texas attorney.
