Texas is a state that recognizes common law marriage. If certain conditions are met, a couple is deemed married in the eyes of the law, even though no formal marriage ceremony was conducted or marriage license obtained. The legal effect is that the marriage can be dissolved only by either death or a divorce decree.
What this is means is that in Texas there is technically no such thing as a “common law divorce.” If the conditions which once existed to prove the common law marriage no longer exist (for example, husband and wife no longer hold themselves out as being married), a formal divorce is still required. In other words, if a common law marriage exists at one point it does not automatically become dissolved by a separation.
The Texas Family Code provides a definition of common law marriage, or “informal marriage.” Under the statute, a common law marriage can occur when 3 conditions are satisfied:
Whether these conditions are satisfied depends upon the level and type of proof. In other words, they are open to interpretation. In many cases, common law marriages can be proven rather easily, other times it’s not always as clear-cut. For example, the statutes do not define a required length of cohabitation or objective test in proving “holding out.” While there are no clearly-defined standards, caselaw in Texas over time has been instructive on the subject. Generally, however, it is required that the spouses publicly state that the spouses are married.
Proof of a common law marriage is important because, like a formal marriage, there must be a division of the marital estate upon divorce. Texas is a community property state, and the presumption is that any assets and debts acquired during the marriage are subject to division upon divorce. You can see that a spouse with much to gain in terms of property division may want to prove common law marriage, whereas a spouse with much to lose may wish to deny its existence.
Additionally, if there are children born during the marriage, provisions relating to custody, visitation and support are necessary. While the parties may file separately a Suit Affecting the Parent-Child Relationship, a divorce decree will cover the rights and duties relating to children upon divorce.
Contact the Hardy Law Group for any questions you may have about common law marriage and divorce.