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Establishing a Valid Marriage in Texas

To prove the existence of a valid marriage, a party must prove that the parties are actually husband and wife.   In Texas, a marriage relationship can be created either through a ceremonial process or an informal or “common law” marriage relationship.

In bringing preliminary actions in the Courts, such as temporary restraining orders or entering temporary orders, all that is required is what is known as a “prima facie” showing of the existence of a marriage.  This is basically any evidence that the parties are married – either formally or by common law.  At a trial on the merits for the divorce, proof of the existence of the marriage must be shown by a higher standard of evidence, known as a preponderance of the evidence.  This can typically be done by admitting evidence of a marriage license, marriage certificate, or by bringing testimony of the parties themselves or other witnesses to the ceremony (pastor who presided over ceremony).

Once Marriage Established, All Law Protecting Spouses Apply

Once a marriage relationship is established, whether formally or by common law, all the legal protections of a marriage arise as well as the fiduciary obligations to support one’s spouse and that marriage relationship can only be dissolved by death or divorce.  Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981).  Under Texas law, once the marriage is established all the legal protections of a marriage arise as well as the fiduciary obligations to support one’s spouse.

Once Established, Valid Marriage Presumed

Once a party establishes by the property evidence that a valid marriage exists, a presumption arises that the marriage is valid.  Texas Employers’ Ins. Ass’n v. Elder, 2828 S.W.2d 371 (Tex. 1955). This presumption of validity, applies to every form of marriage whether ceremonial or informal and applies whether the marriage was entered into in Texas, another state, or another Country.  Tex. Fam. Code § 1.101. This presumption increases with the passage of time (meaning the longer the relationship between the parties), with evidence of any acknowledgements by the parties to the marriage, and birth of children.   The presumption of a valid marriage is itself evidence of a valid marriage and can outweigh evidence to the contrary.   See Elder.

A presumption, as we know, can be rebutted.  To rebut the presumption of the validity of the marriage, the “movant” (or the party seeking to declare the marriage is not valid) must prove the marriage is void or “voidable” under grounds provided for in Chapter 6 of the Texas Family Code.

Common Defenses to Establishing Valid Marriage

One of the most common defenses to a marriage is that one of the parties is still married.  This is also one of the primary reasons parties choose to live together without entering into a formal marriage.  However, if you believe you are in a common law marriage and you do not have evidence that your spouse’s previous marriage has not ended by death or divorce, it is quite possible that the courts will not find that a marriage relationship exists between you and your common law spouse.  This can be particularly devastating after a relationship of many years.

Another example is that the marriage was not entered into with requisite formalities, being the parties did not obtain a valid license, did not conduct a ceremony, and did not thereafter record record the license.  However, there are cases which hold that these statutory formalities for marriage are merely “directory” and that a marriage can be establish even if these certain formalities are not followed.  Remember, if these formalities are not followed, a common law marriage can still be established between the parties.  For example, in a case known as Husband v. Pierce, 800 S.W.2d 661 (Tex. App. – Tyler 1990, orig. proceeding) the court there found that the ceremonial marriage was valid, even though no the parties did not apply for and obtain a marriage license.    However, it is important to know that under certain circumstances noncompliance with statute can be basis for invalidating a marriage if the statute declares noncompliance rendered the marriage void or voidable.

Call the Divorce Attorneys at Evans Family Law Group

If you or someone you know is in a situation where the relationship has ended and you are unsure if the marriage is valid, it is very important that you seek legal advice – even if just to understand the potential legal consequences.  This is particularly important prior to the relationship ending as certain steps may need to be taken to protect yourself.

If you or someone you know has questions about a common law or informal marriage, contact our Austin Divorce Attorneys at the Evans Family Law Group today.  We offer free consultations.  We are compassionate, experienced, and aggressive when your case requires.  Put the experience of the Austin common law divorce attorneys at the Evans Family Law Group to work for you.  To discuss your case, call us at (512) 628-2550, contact Mr. Evans directly at

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