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San Antonio, TX Family Law and Military Divorce Blog

Friday, November 8, 2013

Five Years Living Together—Does that Constitute a Common Law Marriage?

Probably not.  A common law marriage can't occur "accidentally," merely because a couple has lived together for some period of time.  More is required.  Let’s take a closer look.

Not every State recognizes common law marriage.  Texas is one of the few that does.  Texas recognizes a common law or “informal” marriage if three elements exist:

  1. The man and woman agreed to be married;
  2. The man and woman lived together as husband and wife; and,
  3. The man and woman held themselves out to the community and others as husband and wife.

The first element–the agreement to be married—doesn’t require a written statement.  Texas allows an agreement to be proven by circumstantial evidence.  Circumstantial evidence typically evolves from the next two elements.

The second element—living together as husband and wife—includes no bright-line test.  Again, there is no specific length of time that a couple must live together before a common law marriage can be formed.  While Texas doesn’t require the couple to live together continuously, the “matrimonial togetherness” of any non-continuous arrangement must be prominent. 

The third element—holding out to the community and others that you’re a married couple—tends to tie it all together.  The couple's actions cannot be sporadic.  Rather, a clear and consistent pattern must exist.  A non-exhaustive list of conduct might include the following:

  • Maintaining joint financial accounts (e.g. checking and savings);
  • Purchasing a homein both names;
  • Purchasing personal property in both names (e.g. car or boat);
  • Financing purchases in both names (i.e. joint credit);
  • Filing Federal Income Taxes jointly as a married couple; and,
  • Introducing you and your “mate” to others as husband and wife consistently.

In the end, Texas courts determine whether a common law marriage exists based on the facts of each case.  Remember, a specific intent to be married must be evident from the couple’s conduct.  You cannot “accidentally” enter into a common law marriage.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


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