If you live common-law, are you entitled to same as if married?

“If you live in a ‘common-law marriage,’ are you entitled to the same support and property division as if you were legally married?”

Often, I receive inquiries from prospective clients about a divorce, child support, visitation, custody, etc., and the clients state to me that “we are not actually married, we just have a common-law marriage.” I almost always immediately stop them and advise them that if they have a common-law marriage, their marriage is treated just like a ceremonial marriage in Texas.

The essential elements of a common-law marriage are:

1. there was an expressed or implied agreement to enter into marriage;
2. after the agreement, the parties live together in this state as husband and wife; and
3. after the agreement, they represented to others that they were married.

The existence of facts necessary to establish common-law marriage may be proved by circumstantial evidence as well as by direct evidence. There is no presumption that a common-law marriage exists just because two people live together, and the burden of proving that the man and woman agree to be married rests upon the party that is claiming the existence of a common-law marriage. When a party is claiming a common-law marriage, the courts will scrutinize the parties’ relationship very closely. Even though the parties may be living together and occasionally refer to themselves out to the public as husband and wife, in many cases, it is difficult to prove that the parties actually agreed to be married.

It is becoming more difficult to successfully prove a common-law marriage. Historically, common-law marriage was recognized because many people in Texas lived far away from ministers and county clerks, lived together, intended to be married, and even had children. Today, almost everyone has access to a minister, a county judge, or a justice of the peace; it’s also quite common for people to have children out of wedlock, and there seems to be little or no stigma attached to this. Finally, people are frequently signing documents today that disprove an intent to be married, reciting that they are single, such as: federal income-tax returns signed under the pains and penalties of perjury; automobile-loan applications; bank loans; mortgage applications; and deeds of trust.

For the man and woman who truly do intend to have a common-law marriage and do not wish to go through a ceremonial marriage, Texas has adopted a procedure whereby the parties may declare an informal marriage in writing, under oath, before a county clerk, and execute a clerk certificate of the declaration.

A unique situation has developed over the years in Texas in which people live together and hold themselves out to the public as husband and wife, but do not ever state whether or not they have an actual agreement to be married. Eventually, these people drift apart, and as long as both of them remain poor, both of them will usually agree that they never intended to be married. However, if one of the parties should become wealthy, the other party almost always comes to the conclusion that they really did have a common-law union, and they should have gotten divorced, so they go down to the court and file for a divorce. In 1997, Texas amended the common-law marriage rules to provide that, in a proceeding in which common-law marriage is to be proved, if it is not commenced before the second anniversary of the date in which the parties separated and ceased living together, it is presumed that the parties did not enter into an agreement to be married.

Once a common-law marriage is established, its effect is identical to that of a ceremonial marriage. The parties have a duty to support each other. Any property acquired during the term of the marriage is community property. Any children born between the parties are children of the marriage. If the parties decide go their separate ways, they need to file for divorce. Once they enter into the divorce court, the court will divide the estate of the parties in a manner the court deems just and right, having due regards for the rights of the parties and any children of the marriage. The court will set aside the parties’ separate property interests, establish conservatorship in support of the children, and consider the issues of post-divorce maintenance.

So in the eyes of the laws of the State of Texas, the two parties in a common-law marriage, upon separation, have the same rights, duties, and responsibilities to each other and their children as two parties in a ceremonial marriage.

John K. Grubb practices family law in Houston. He has a BBA, MBA, and a JD Degree. John K. Grubb focuses a significant part of his family law practice on helping couples create premarital and prenuptial agreements in Texas.