What is common law marriage?
A common law marriage, in Texas, is formed by one of two methods:
- If the parties have signed a Declaration of Marriage pursuant to Section 2.402 of the Texas Family Code, the parties are married.
- Pursuant to § 2.401(a)(2) of the Texas Family Code, a man and woman are married if they agreed to be married, they then lived together as husband and wife and held themselves out to the public as being married.
This second test is the most common cause for concern between parties. Just because you lived with a significant other for a period of years does not make you married. You have to have fulfilled all three requirements above in order to be married. Even if you had a child together, it does not matter: a child is an issue of paternity in this case, not about being married. Having a child is not one of the elements of common law marriages.
If a court proceeding in which a marriage is to be proved by §2.401(a)(2) of the Texas Family Code is not commenced by the second anniversary of the date on which the parties separated and ceased to live together, it is a rebuttable presumption that the parties did not enter into an agreement to be married. In other words, there is a statute of limitations for a divorce proceeding as to common law marriages, albeit, an informal and not absolute deadline.
A person under 18 may not be a party to a common law marriage or execute a declaration of informal marriage.