The Law with Shaw | Common Law Marriage

law with shaw(a.k.a: What have I got myself into this time?)

By Steven Shaw
Attorney & Certified Financial Planner

This week’s topic looks at the legal concept of “Common Law Marriage” also referred to as an “Informal Marriage”.  In these days of frequent cohabitation, sexual freedom and informal living arrangements one needs to be aware of the potential pitfalls of being too complacent or nonchalant regarding how one might characterize relationships.

Requirements of a Common Law (or informal) marriage:

  1. Each person must be at least 18 years of age;
  2. You must not be related to the other person by blood or adoption (no first cousins or closer)
  3. Must not be currently married to a third person,
  4. There must be “an agreement” between the two of them to be married;
  5. Must, after the agreement, co-habitat in Texas and
  6. Must represent to others (hold out) that they are married.

Example:  You find yourself at the end of a hot date and you decide to check into a motel (or B&B if you are in Jefferson).  At your dates’ insistence and “just for funsies” you register as “Mr. and Mrs.”

Has there been “an agreement”?  Probably.
Has there been representation?  Absolutely.
Has there been cohabitation?  Fittin’ to be.
The next morning are you common-law married?  Most likely.

On the other hand (probably the one with the wedding ring on it), direct evidence of an agreement is not generally required.  Cohabitation and representing to others that you are married is usually enough to evidence an agreement.

There is no statutory time limit to the cohabitation requirement, meaning even a one night stand could qualify.

Oh, I can see the wheels a turning now – you are asking yourself “how many times have I been common-law married?  And to how many people?

Fortunately, if no legal action regarding the common law marriage is commenced on or before two years from the date of ceasing to live together, it is rebuttably presumed that no agreement to be married ever existed, and the requirements for a common law marriage fails.  Whew – big sigh of relief, I’m sure.

 Caveat: One’s most recent marriage is presumed to be valid (Tex. Fam. Code 1.102), meaning that if you get formally married less than two years after a possible common law marriage ended, the formal marriage is deemed valid.  Otherwise you would be looking at bigamy issues.

What’s the big deal, you say?  As you will learn in my next column on marital property law divorces from common law marriages can be just as messy as any other.

Bottom line – know what you are doing, who you are doing it with, and remember what you say.  The life that you save may well be your own.

Parting shot: In Obergefell v. Hodges, U.S. 135 S.Ct.2584 (2015) Same sex couples now have to play by the same rules and have as much legal consternation as heterosexual ones.   



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