A common law, or informal marriage, has a legal definition that the Texas legislature laid out in the Texas family code, section 2.401. Many people are not aware of the requirements for an informal or common law marriage. Some believe that living together for a certain period of time makes the relationship a common-law marriage. But for a relationship to be a common-law marriage there are three key elements that must be met.
#1 – There must be cohabitation.
The couple must have lived together.
# 2 – The couple needs to have held themselves out to others as husband and wife.
For instance, if at a social event they introduce each other as “my husband” or “my wife”, then they have held themselves out as being married. Further, they may have filled out an application for a credit card and indicated “spouse’s income”. They may also have filed their taxes as “married filing jointly”. Any of these actions can constitute “holding themselves out as married”
# 3 – There must be an agreement between the parties to be informally married, or to act as husband and wife.
In many cases, it is this third element that the dispute over whether they were a married couple falls apart when the case goes to court. A couple may be living together, and one may occasionally call the other “husband” or “wife”, but if there was no agreement to be married then legally there is no common law marriage. The agreement can be in writing or it can be verbal, and in most cases it is a verbal agreement.
Once these three elements of a common-law marriage have been met, according to Texas statute, then the couple is
married, just the same as if they went to a church and had a big ceremony. If the relationship/marriage ends at some point, then the couple must go through the same divorce procedures as a traditional marriage that is ending. The same community property laws will apply to the common law marriage.
To avoid legal complications, consult a family law attorney regarding rights and duties of common-law marriage. An attorney may advise the couple to enter into a written marital property agreement to clarify the couple’s intentions, or to preserve separate property.
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