Common Law Marriage

Family Law Articles

This is one of the most misunderstood laws relating to marriages. Living together, without anything else, is not sufficient to create a common law marriage. The couple must take purposeful action to be common law married in Texas. It does not happen by accident. Once a common law marriage exists, it is treated the same as a licensed marriage.

Common law marriage originated in England, however, Great Britain passed the Clandestine Marriages Act of 1753 ending common law marriages in England and Wales. The acts of Parliament, however, did not apply to the colonies in the new worlds common law marriage continue das it served an important purpose. It was often difficult to find a preacher or a justice of the peace to perform the ceremony in the early days of the new world or there might be a long wait for one to come to where a couple lived in the West. Unmarried people living together would be scorned and their children would be born out of wedlock, so common law marriage served the purpose of legitimizing the relationship and the children born of that relationship.

Today most states have ended the creation of common law marriages, with some states phasing them out by only recognizing common law marriages that were created before a certain date. The following8states still permit common law marriages to be created:

  • Colorado
  • District of Columbia
  • Iowa
  • Kansas
  • Montana
  • Oklahoma
  • Rhode Island
  • Texas

While there is no shortage of preachers and justices of the peace now and living together outside of marriage is widely accepted, many people still choose common law marriage. There are a variety of reasons people choose common law marriage, however, most mistakenly believe they are avoiding the complications and expense of divorce if the relationship ends. While some people will simply pack their stuff and move out, many common law marriages will not be able to agree on dividing their property and will need a divorce. These divorces are usually more complicated and therefore more expensive. The person that files the divorce must prove that a common law marriage even exists before he/she can proceed with the divorce process. Once the existence of a common law marriage is proven, the divorce process is exactly the same for a common law marriage as it is for a licensed marriage.

There are two ways to create a common law marriage in Texas. The couple can sign a declaration with the state OR the spouse that filed must prove each of the following three elements:

  1. Both people agreed to be married at some point in time;
  2. The couple lived together in Texas as a married couple; and
  3. Both spouses represented to others that they are married.

If there is no marriage license, and no declaration of an informal marriage filed with the state, the spouse that files for divorce has the burden of proving that a common law marriage exists.

Why would a spouse deny that a common law marriage exists? There are a number of reasons why a spouse might deny the existence of a common law marriage, the list is greed. Often, valuable marital assets are only in one spouse’s name and that spouse does not want to fairly divide the marital assets with the other spouse. If the existence of a common law marriage is not proven, then title of the property will determine who owns the property. If a common law marriage is proven to exist, then the Texas Family Code will apply, and the court is required to divide the marital estate in a just and right manner.

Another issue that arises in common law marriages is determining when the common law marriage began. The date a marriage begins is important for two reasons. Once a marriage exists, property accumulated from that date forward is presumed to be community property that the court will divide between the parties in a just and right manner. Furthermore, the date the marriage began is important in determining the length of a marriage. The length of a marriage arises when a spouse is requesting spousal maintenance. The length of the marriage is not only a qualification for eligibility of spousal maintenance, it also determines how long spousal maintenance can be ordered.

In common law marriages, before the divorce can proceed the courts require a hearing to prove the existence of the common law marriage. This is expensive and results in having two rounds of litigation, one to prove that the marriage exists and then a second round to divide the property and enter orders for any children born of the marriage. If the couple have children together, the issues related to the children will continue as a suit affecting the parent-child relationship, even if there is insufficient evidence of a common law marriage. Then, to further complicate things, the date the common law marriage began may also have to be litigated. All these extra steps that do not exist in a licensed marriage can increase the cost of the litigation and complicate the divorce process.

Proving that a common law marriage exists can be complicated. Courts want to see purposeful actions that demonstrate a common law marriage.

While any evidence of marriage can be used in court, the following evidence is often helpful to prove the existence of a common law marriage:

1.Written agreements or statements of marriage.

2.Pictures of a ceremony performed.

3.Wearing wedding rings.

4.Testimony of friends or family.

5.Joint Tax Returns.6.Exchange of Anniversary Cards.

7.Using the same last name.

8.Use of the titles husband or wife.

If you have a common law marriage and do not want to get a license and perform a ceremony, the single best thing you can do is file a declaration of common law marriage with the state. If you are ending your relationship and need to prove the existence of a common law marriage, you need an experienced divorce lawyer to help you through the process. Call Robin R. Zegen today for a consultation.