“I Do” Optional
Texas is one of the few states that recognizes common law marriage. Also known as an informal marriage, it allows a couple to be married without having to go through a marriage ceremony. Unless there is a declaration of marriage signed, there are set requirements that must be met to be apart of an informal marriage.
First, the couple must agree to be married. I know this one seems obvious, but it is a requirement that can be misconstrued by a party to the relationship. For instance, an engagement does not constitute a present agreement of marriage, but that the couple will be married in the future. The key difference being that the agreement to an informal marriage must be that the agreement is present and immediate. If a party tells others they are married, but the other party does the opposite, there is no present agreement. If a party uses the last name of the other party without the other party’s permission, there is no present agreement. The key is that there must be evidence that both parties to the relationship agree to be married to each other at the time of the agreement.
Second, the couple must live together as spouses. You cannot claim a common law marriage if you live in an apartment in the city, and your significant other lives in a townhome in the suburbs. There needs to be some evidence that they live together. Things such as shared names on the lease/mortgage, personal property of both parties present at the home, and a single bed for the couple. It is important that it is proved that the couple lives together as spouses and not just as roommates. If the party who denies the existence of a common law marriage can show that they slept in a separate bed in a separate room, it will help their claim. As a side note, contrary to popular belief the couple does not have to live together for a certain amount of time to be considered informally married.
The third, and arguably most contentious, requirement for common law marriage is that the couple must hold themselves out or represent themselves to the public as married. The most important part of satisfying this requirement is that the marriage cannot be in secret. Calling each other husband and wife in private will not suffice. Spoken words will help prove the existence of an informal marriage, but they are not required. On the other hand, actions and conduct alone will be sufficient to satisfy the holding out requirement. For example, if a couple claims each other on their taxes as their spouse, list each other as a spouse beneficiary on their insurance, or list the other party as a spouse on their mortgage, it can be said that they are representing themselves to be married. However, it’s important to note that one of these examples alone may not be enough. This is where telling family members, friends, and all of social media that you are married will tip the scales in favor of common law marriage.