Unmarried couples frequently live under the same roof, either before getting married or without the intention of ever marrying at all. The increasingly blurred lines between casual cohabitation and formally recognized marriage can, however, introduce thorny complications in certain legal situations.
In Texas, two consenting adults can legally enter a “common-law” marriage without ever having a wedding ceremony or obtaining a formal marriage license. So, what is the difference between a common-law marriage and simply living together? And how is a common-law marriage treated differently from a formal marriage when it ends? Keep reading to learn more.
What Are the Requirements for a Common Law Marriage?
2.401 of the Texas Family Code recognizes the existence of a common-law marriage (also known as an “informal marriage” or “marriage without formalities”) when:
- The couple has agreed to be married – There must be evidence demonstrating that the couple intentionally agreed to have a present and permanent marital relationship, whether or not the evidence includes written documentation. An agreement to be married at some later point does not count as an agreement to be in a present marital relationship.
- The couple has agreed to live together as spouses – A couple having sexual contact under the same roof is not sufficient for them to be considered in a common-law marriage. A cohabiting couple must be living together as spouses while maintaining their household as any married couple would, regardless of the length of time spent in cohabitation.
- The couple has represented themselves as a married couple – The couple must “hold themselves out” to other people as a married couple. Examples of a couple representing themselves as married include signing legal documents (such as mortgages or loan applications) as a married couple or simply telling other people they are married.
Who Can Legally Enter into a Common-Law Marriage in Texas?
Only certain individuals may enter into a common-law marriage in Texas. To do so, you and your partner must both be:
- At least 18 years old, whether or not you have parental permission
- Not related to one another by blood
- Not already married to any other person
Since the Supreme Court held in Obergefell v. Hodges that all states must recognize same-sex marriage, same-sex couples are permitted to enter into common-law marriages in Texas.
How Do You End a Common-Law Marriage in Texas?
Like any marriage, common-law marriages sometimes come to an end. And since common-law marriages are legally the same as formal marriages, common-law spouses must undergo formal divorce proceedings if they wish to separate.
The key difference between divorce in a formal marriage versus a common-law marriage is that common-law spouses typically must prove the existence of the common-law marriage before pursuing a divorce. In most cases, the person who initiates the divorce is responsible for establishing the common-law marriage exists.
Like in a formal marriage, the grounds for divorce in a common-law marriage include:
- Living apart – Living apart with no cohabitation for three years or more
- Insupportability – Lack of compatibility or “irreconcilable differences”
- Abandonment – Intentional abandonment for at least one year by either spouse
- Adultery – Voluntary extramarital intercourse with a non-spouse by either party
- Cruelty – Cruel verbal, mental, or physical treatment of one spouse by the other
- Felony convictions – Conviction of a felony by either spouse that results in a state or federal prison sentence lasting at least one year
- Confinement in a psychiatric institution – Confinement of either spouse in a private or state mental hospital for at least three years
Contact a Texas Family Law Attorney Today
If you have questions about common-law marriage in Texas or are seeking separation from a common-law spouse, don’t hesitate to reach out to the dedicated team at Hargrave Law, PC. We can address your concerns and provide straightforward legal advice when you contact us for a free initial consultation with a Texas divorce lawyer.