Heterosexual couples traditionally have had the legal right to marry. For many of these couples, the biggest decisions often are the most memorable way to “pop the question,” and, determining how, when and where to hold the wedding.
However, for members of the LGBT community prior to June 26, 2016, the process of committing your life to the person you loved required specific legal maneuvering. Many of these couples were forced to seek a marriage in a different state, form a domestic-register partnership agreement; or enter into a civil union.
Members of the LGBT community did not have the basic legal right to enter into a marriage until June 26, 2016, when the Supreme Court’s marriage equality decision Obergefell v. Hodges, 135 S. Ct. 2584 (2015) was rendered. Some states afforded members of the LGBT community to enter into marriage. Many states, like Texas; however, refused to recognize the marriages granted in other states. Obergefell v. Hodges provided the LGBT community with the legal right to marry.
Post Obergefell there are many legal questions that the LGBT community should consider. We’re providing an informational section here that addresses the impact of Obergefell on common law marriage, community property and parentage-right presumptions, civil unions, domestic-registered partnerships, divorces, and adoptions.
Let’s fast forward to the November 2016 Presidential election. Many members of the LGBT community now are fearful that the Supreme Court will revisit it’s 2015 ruling. However, the doctrine of stare decisis-which means that courts will generally respect and follow their own prior rulings- is strong, and traditionally the Supreme Court rarely overturns an important constitutional ruling soon after issuing it.
Partnership agreements versus a marriage license (question becomes – must couples remarry if they simply have a partnership agreement)
Prior to Obergefell v. Hodges, 135 S. Ct. 2584 (2015), Texas did not provide the LGBT community the legal right to marry. Post Obergefell, the LGBT community in Texas and ALL states no longer have to challenge the constitutionality laws regarding the legal right to marry. LGBT couples in new relationships now enjoy the same marriage rights as heterosexual couples.
Members of LGBT community who prior to the Obergefell decision and could not legally marry in Texas and other states were forced to utilize some very creative legal ways entered into “marriage.” Many couples entered into partnership agreements, civil unions and/or traveled to another state that recognized same-sex marriage. While Texas and other states would not recognize this as a “legal marriage,” these couples used their best efforts to commit themselves to each other.
LGBT couples now need to determine what a domestic-partnership agreement, marriage in another state, or a civil union, mean now that they have the legal right to marry.
For example, like heterosexual couples who have had a destination wedding, the LGBT couples who have obtained an official marriage certificate and have married in other states that recognized same-sex marriage prior to Obergefell are married post Obergefell in Texas and all other States.
However, those who entered into civil unions or partnership agreements may not be legally married BUT may have formed a common-law marriage.
What is Common-Law Marriage?:
Common-law marriage requires that each party has a present, immediate, and permanent marital relationship….” See Small v. McMaster 352 S.W.3d 280, 283 (Tex. App.-Houston[14th Dist.] 2011, pet denied.
The elements for a common-law marriage in Texas consist of the intent to be married, cohabitate, and hold yourself out as married. All three elements are required. See Russell v. Russell, 86 S.W.2d 929, 932-933 (Tex. 1993) and Farrell v. Farrel, 459 S.W. 3d 114 (Tex. App.-El Paso 2015, no pet). Texas couples who desire to claim a common-law marriage have two years to assert the claim.