(Informally) Married in Texas: How Common Law Marriage Affects Same-Sex Couples

By Debra E. Hunt

I have spent a great deal of time during the month of July getting my LGBT clients up to speed on what it means to be married in Texas. Often that includes a discussion of how to get married. Most couples seem to understand that the recent U.S. Supreme Court decision in Obergefell v. Hodges opened the door for same-sex couples to get a marriage license at their local county clerk’s office. What has been a bit murkier is the possibility that a couple may already be in an informal marriage. For those couples who wish to remain unmarried, our discussion turns to how to avoid informal marriage altogether.

What is “informal marriage”?

Historically, informal marriage was a marriage created by agreement between a man and a woman who wanted to be treated as husband and wife without the need for a marriage license. There is a high level of debate going on in the LGBT legal community as to whether informal marriage will be available to same-sex couples in Texas and, if so, whether the beginning of such marriages can pre-date the June 2015 Obergefell decision.

The concept of informal marriage has its roots in the common law adopted by the Republic of Texas from England in 1840—hence the more popular name “common law marriage.” Common law is the body of law that exists through court-case decisions that is not codified in statutes. The concept of common law marriage was “codified” in Texas statutory law in 1989, when the legislature first passed a time limitation on enforcing such marriages. Today, the rules for establishing and enforcing informal marriages can be found in Chapter 2, Subchapter E of the Texas Family Code.

How is informal marriage established?

In Texas, a couple wishing to enter into an informal marriage must satisfy three requirements:

• They must unconditionally agree between themselves to be married
• They must cohabit together as a married couple in the state
• They must hold themselves out to others as being married

All three requirements must occur at the same time, although there is no minimal duration during which this trilogy must exist. The key element is not the length of the relationship, but rather how the parties behave with each other and appear to the outside world.

Who is eligible to enter into an informal marriage?

Both members of a couple must be at least 18 years of age, must not be related to each other by consanguinity (as defined in Section 6.201 of the Texas Family Code), and must be legally single. If either party is married to someone else, a new informal marriage does not start until the prior marriage is dissolved, regardless of the couple’s intent and behavior.

How do you end an informal marriage?

There is no such thing as “informal divorce.” Once a marriage exists, it must be officially terminated, either by the death of a spouse or by divorce through the courts. Unlike a licensed marriage, a party to an informal marriage has only two years from the end of the relationship (by death or non-cohabitation) to assert a right based on the marriage. After two years, the law presumes that no marriage existed.

Can an informal marriage be formally recognized before divorce or death occurs?

Texas law allows the parties to an informal marriage to register their marriage by filing a Declaration of Informal Marriage with the county clerk in the county of their residence. The form may be filled out in advance, but both parties must sign the form at the clerk’s office under oath, in much the same way a formal marriage license is obtained. Once filed, the registered declaration is indexed in the same manner as formal marriage licenses.

So what does this mean for same-sex marriage?

In Obergefell, the U.S. Supreme Court decreed that all laws that limit marriage to only opposite-sex couples are unconstitutional. Arguably, in those few states (including Texas) that still allow marriages to be created informally, same-sex couples now have access to informal marriage in addition to licensed marriage.

The question that remains for future determination (i.e. litigation) is how informal-marriage law will be applied to same-sex couples whose relationships pre-date Obergefell. One probate judge in Austin has already found that two women in a committed same-sex relationship had an informal marriage, based largely on the fact that they had a prior commitment ceremony. Does this mean that other same-sex couples will be able to establish an informal marriage that is back-dated to their commitment ceremony? The Austin case is still in litigation, so it has not yet provided a precedence. Even so, this case is a strong indicator that couples in committed long-term relationships with the right facts may be informally married.

What are the advantages and disadvantages of informal marriage?

One upside to informal marriage is that it can be established without paying any fees to the county government. Once established, the spouses have marital rights just like couples who have licensed marriages, with community-property rights and parental presumptions that are defined by state law.

A major downside to informal marriage is the uncertainty of its existence (unless the couple registers the marriage). A party wanting to assert a right based on an unregistered informal marriage has to provide convincing proof that the three requirements have been met, and must do so in a timely manner. Judges dealing with death and divorce are used to deciding such matters, but third parties outside the court system may simply refuse to recognize something that is not evidenced by a license.

Another downside is the possibility that other states might not recognize the marriage if the couple leaves Texas. Although states are required to give full faith and credit to the ministerial acts of other states, informal marriage does not require government action, so there is always some risk that another state government or agency would not grant marital rights under an informal marriage.

Does a formal marriage supersede an informal marriage?

A subsequent formal marriage does not supersede an informal marriage (if such actually exists). In other words, the length of the marriage does not change because the parties enter into a licensed marriage. As attorneys, we see these kinds of claims most often when the marriage is ending, and usually being made by one spouse to obtain an advantage in property rights that pre-date the licensed marriage. Indeed, the fact that a couple obtained a formal marriage license when they were already informally married might weigh against the spouse trying to assert that the marriage existed prior to the formal wedding. However, in the case of same-sex couples, marriage licenses were unavailable in Texas before Obergefell, so a party’s claim of informal marriage prior to entering into a licensed marriage may not be as questionable.

Whether formal or informal, marriage is a serious decision that should not be entered into without thought and consideration as to what it means to be married. For couples wishing to protect themselves from the implication that they are in an informal marriage, particularly if there has been any kind of commitment ceremony between them, creating written documents that clarify the situation is certainly encouraged.

Debra Hunt is an attorney with the firm Moore & Hunt in Houston, Texas. The firm’s practice areas include adoption, surrogacy, contested family law, probate, estate planning, and real-estate transactions, with an emphasis on LGBT issues.