“We’ve been together for years, does that mean we’re common-law married?” is a very frequent question we get, and the honest answer is: not automatically, and not just because of how much time has passed. Texas does recognize common-law marriage — technically called “informal marriage” — but it requires more than simply living together for a long time.
David Eaker has tried these cases to judgment and defended them to the Court of Appeals. Whether you think you may be married or need to prove your informal marriage, David has the experience to represent you through this very unique and special gauntlet Texas law requires for establishing or defending against an informal marriage.
The Marriage Presumption
Texas law supports and encourages marriage. Legal presumptions support the legitimacy and recognition of marriages but failing to comply with the formalities of a ceremonial marriage can call one’s relationship status into question.
The Three-Part Legal Test
Under Texas law, an informal marriage exists when both people (1) agreed to be married, (2) lived together in Texas as spouses after that agreement, and (3) represented to others that they were married — commonly referred to as “holding out” as married. All three elements generally need to be present; none of them alone is enough, and there is no fixed number of years that automatically creates a common-law marriage on its own. All three elements have to occur at the same time.
What “Holding Out” Actually Looks Like
Courts look at concrete evidence: using the same last name, referring to each other as husband and wife to friends, family, or on official documents, filing joint tax returns, listing each other as spouses on insurance or medical forms, or being introduced as married at social events. A couple that lived together for a decade but consistently described themselves to others as “just partners” or “boyfriend/girlfriend” has a much harder case than a couple that did so for two years while openly calling each other spouses. This is normally where such litigation is more contentious and very fact sensitive. Evidence of publicly identifying as married when it was against their financial or other interests can be very persuasive. Selectively identifying as married only when doing so yields a benefit has been found insufficient by Courts.
Why This Question Comes Up
This issue tends to surface in two very different contexts: a breakup, where one partner argues a marriage existed (and therefore wants a division of property and possibly spousal maintenance), or after a death, where a surviving partner needs to establish marital status to inherit or claim benefits. The stakes in either situation are significant, which is why these cases are often disputed.
There’s a Filing Option, and a Time Limit on Proving It Later
Couples can formally register an informal marriage with the county, which avoids any later dispute about whether one exists. If you believe you are informally married, go register. It will save future conflict and allows the couple to select a date that can be in the past. Failing to do so is often viewed as an admission the parties did not in fact ever agree to be married.
Without that registration, a person generally must prove the marriage’s existence within two years of the date the relationship ended, or the law presumes no agreement to be married was ever made — making it significantly harder, though not always impossible, to establish later. If you are reading this and worried about that timeline, check with a lawyer right away as there are numerous exceptions as well.
If You’re Unsure Where You Stand
Whether you’re trying to establish that a common-law marriage existed, or trying to show that it didn’t, these cases come down to specific evidence rather than general impressions about the relationship. Gathering documentation early — before memories fade or records are lost — makes a real difference.
If you have questions about your marital status under Texas law, our family law attorneys can help you understand where you stand. Contact us to discuss your situation. Consultations are free. Call (972) 772-8005.
