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A common law marriage is a marriage between a man and a woman who have agreed to be married, have lived together as husband and wife, and have represented themselves or “held out” to the public as husband and wife.  Tex. Fam. Code §2.401.  This is known as a common law marriage because the parties have not obtained a marriage license nor participated in a marriage ceremony.  All of these elements must exist at the same time in order to successful establish a common law marriage.    See Russell v. Russell, 865 S.W.2d 929 (Tex. 1993).

Proving a Common Law Marriage in Texas

One way, and the most obvious, to establish a common law marriage in Texas is for the parties to file a form, provided by the local County Clerk’s office, known as a “declaration of informal marriage”.  See Tex. Fam. Code § 2.401.  A certificate from the County Clerk’s office serves, in and of itself, as sufficient evidence that a valid informal or common law marriage exists between the parties.

Otherwise, a party seeking to establish a common law marriage is required to prove the specific elements as discussed above in order to establish that a common law marriage exists between the parties.

Most Common Examples of Evidence of Common Law Marriage

The most common examples of evidence of a common law marriage are:

(a)          behavior of the parties themselves (did they behave like spouses);
(b)          wearing rings or other jewelry which symbolized the marital relationship;
(c)          joint tax returns;
(d)          joint bank accounts;
(e)          joint applications for credit;
(f)           references to “spouse” or “Mr. and Mrs”;
(g)          testimony that the parties referred to themselves as husband and wife;
(h)          joint life insurance or making the other party a beneficiary on life insurance;
(i)           covering the other party as a spouse on health insurance;
(j)           purchase of property together.

Previous Marriage a Common Defense

One of the most common defenses to a common law 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.

Common Law Marriage Can only End in Death or Divorce

In today’s society, more and more couples choose to live together and have children without entering into a formal marriage relationship.  Further, once a marriage relationship is established, whether formally or by common law, the marriage can only be dissolved by death or divorce.  Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981).  There is no such thing in Texas as a “common law divorce”.  Thus, once a marriage is established all the legal protections of a marriage arise as well as the fiduciary obligations to support one’s spouse.

True Story

For example:  assume a couple begins living together in good faith and after a few years begin to have children together.  The “husband” in the relationship is successful in his business and the couple agree that the “wife” should stay home and care for their children or work only part time.  A few more years go by and the “husband’s” business continues with it’s previous success.  During the relationship, the husband’s business became worth more than $1million.  During their relationship, the “husband” purchased a home in his name, because the “wife” had no credit, and the parties move in after living in rented property for the first few years of the relationship.  After a few more years, the “wife” begins to feel “trapped” in the relationship.  She begins to go out and date other men.  You can guess what happened from here.  The parties had arguments and separated.  At this time, the “husband” had raised the “wife’s” son since she was about 1 year old and they had another child during the relationship.  The “step son” was now 12 and their son was 8.   About 1 year later, the “wife” sues the “husband” for divorce alleging a common law marriage and seeking spousal support, alimony, maximum child support, the house, and one-half of his business interest and retirement.

This is a true story and it ended with a 5 day jury trial.  I successfully defended the “husband” in this case.  No marriage found to exist and Husband kept all of his assets and his business and was only ordered to pay guideline child support.   Thus, the existence, or non existence, of a common law marriage can become a significant issue should the relationship end on bad terms.

Call the Common Law Divorce Attorneys at Evans Family Law Group

If you or someone you know is in a situation where the relationship has ended and there was no formal marriage, 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 Common Law 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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