Common Law Marriage In Texas: Often Misquoted In Bars And Everywhere Else


Imagine: A lawyer walks in to a bar…or any function with two or more people. At least once a month in my experience at any of these social settings, someone asks the familiar question: Am I common law married? Or some version of that question.

Routinely, after the question is poised, there will typically be a round of “I heard” responses. “I heard you have to live together for 6 months…” (Wrong.) “I heard you have to file taxes together.” (Not true.) “I heard you have live together for more than 2 years before you’re common law married.” (Nope.)

Informal (or “common law”) marriage has been recognized in Texas since 1847 and we’re still getting it wrong. So, here’s the definition of common law marriage (no matter what you’ve heard or what your baby sister’s cousin’s friend’s boyfriend claimed was common law marriage):

An informal or “common law” marriage is a marriage between two people who (A) agree to be married, (B) live together in Texas as spouses, and (C) hold themselves out to others in Texas as a spouse. See Texas Family Code §2.401. Russell v. Russell, 865 S.W.2d 929, 931 (Tex.1993).

That’s it and that’s all. There’s three elements to a common law marriage: (a) agree you’re married, (b) live together as a married couple, and (c) tell others that you’re married.  

Notice that there is no required time period for these elements. Technically, “Jane” can meet “John” and within 24 hours of their first date be common law married if they agree to be married, live together as a married couple, and hold out to others that they’re married. By contrast, there are hundreds of couples in Texas living together for decades who aren’t common law married simply because they haven’t held themselves out to be.


The first element is rather simple: the parties must agree to be married. Texas Family Code §2.401.  The evidence must show that the parties intended to have a present, immediate, and permanent marital relationship and that they did, in fact, agree to be spouses. Small v. McMaster, 352 S.W.3d 280, 283 (Tex. App. – Houston [14th Dist.] 2011, pet. denied).

Temporary cohabitation that can be ended by either party is not sufficient to show that the parties intended to create a permanent marital relationship. In re C.M.V., 479 S.W.3d 352, 360 (Tex.App. – El Paso 2015, no pet).

An agreement to be married can be established by both direct evidence, such as an express written agreement to be married (Russell v. Russell, 865 S.W.2d 929, 933), or by circumstantial evidence that demonstrates the parties’ acts, statements, and conduct (Hill v. Smith, 181 S.W.2d 1015, 1016 (Tex.App. – Dallas 1944, no writ).


After agreeing to be married, the parties must live together in Texas as spouses. See Texas Family Code §2.401(a)(2).  The requirement of living together is often referred to as “cohabitation” which means living together as spouses, maintaining a household, and doing things normally done by spouses (“more than sexual relations under a common roof”). Claveria v. Estate of Claveria, 597 S.W.2d 434, 437 (Tex.App. – Dallas 1980).


After agreeing to be married, the parties must also represent to others in Texas that they are married. See Texas Family Code §2.401(a)(2).  There’s no such thing as a secret informal marriage. Ex parte Threet, 333 S.W.3d 904, 909 (Tex.App. – Dallas 2009, no pet).

Examples of “holding out” to the community at large has included (but isn’t limited to): (a) Parties representing in a notarized, recorded deed that they were married (Estate of Claveria, 615 S.W.2d at 167); (b) One party was named as spouse in and made beneficiary of the other party’s life-insurance policy. (Ortiz v. Santa Rosa Med. Ctr., 702 S.W.2d 701, 704 (Tex.App. – San Antonio 1985, writ ref’d n.r.e.); (c) Couple signed a credit application as husband and wife. Persons v. Persons, 666 S.W.2d 560, 563 (Tex.App. – Houston [1st Dist.] 1984 writ ref’d n.r.e.); and (d) Evidence that man and woman introduced each other as husband and wife and signed wedding guest book as “Mr. and Mrs.” Romano v. Newell Recycling, No. 04-07-00084 (Tex. App. – San Antonio 2008, no pet.).

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