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Common Law Marriage

Texas is a unique state for many reasons – it is the largest state in the continental United States; it once was its own country; and it is the birthplace of bar-b-que. It is no wonder then that its family code is equally unique. Common law marriage, long considered a relic of the past, is still alive and well throughout the state of Texas, and allows many couples the opportunity to enter into marriage without the pomp and circumstance of a regular marriage ceremony. However, a common law divorce does not follow common law marriage, and instead couples will have to seek legal counsel to effectuate a divorce after the dissolution of a common law marriage.

Common Law Marriage

Common law marriage has its roots in ancient civilizations such as the Greek and Roman civilizations which legitimized marriages without the inclusion of civil or religious officials. England abolished common law marriages in the 18th century, although this abolition did not extend to the new colonies. Therefore, many states in the early United States allowed common law marriage, a tradition that continues throughout a handful of states to this day. Texas is one such state that carries on the tradition of common law marriage, as long as three factors as proof of the marriage are met. These factors include:

  1. Both spouses agree to be married;
  2. The spouses live together; and
  3. The spouses represent to others that they were married.

These three factors are literal, and can be as miniscule as one spouse referring to the other as their “wife” in a casual setting. In the age of social media, this “representation” can include even a reference to the other party as your “wife” on social media. The law does not put any time limits on the length of time the spouses lived together to establish a common law marriage, although in disputes, a court will look at the length of time. A couple may also enter into a common law marriage through an agreement effectuated at a county clerk’s office, similar to a marriage license.

Divorce After Common Law Marriage

A divorce is necessary to end a common law marriage if the two spouses want protection under the law related to their assets (including the protection of community property), as well as any child support or child custody agreements. However, the couple may avoid the expense of divorce if a proceeding to establish the common law marriage is not brought within two years after the couple separates and stops living together. However, although the couple may deny a common law marriage from existing, proof may be shown that indicates the couple was living together and holding themselves out to be husband and wife.

Most cases of common law divorce occur when one spouse wishes to be entitled to a fraction of the marital estate or other benefits which marriage affords both parties. An individual may also unintentionally enter into a second marriage if they did not fully end a prior common law marriage, leading to potential criminal charges. It is important to consider all the facts of a common law marriage prior to entering into a marriage or ending the marriage.

Malley Law Firm | Houston Family Law Attorney

If you have questions regarding the validity of a common law marriage or the dissolution of a common law marriage, do not hesitate in contacting the attorneys of the Malley Law Firm. Our attorneys have years of experience in handling common law marriage and will assist you in the dissolution of a common law marriage or in the steps to protect your assets during the marriage. Contact our Houston or Beaumont offices today for your initial free consultation.


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