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What is a common law marriage and how does one begin?
Though the Counting Crows sang Accidentally In Love about falling in love without intending to or realizing it and an inability to escape, it’s hard to imagine how a common law marriage could happen accidentally and that a couple could inadvertently be bound together legally. It is more than just being engaged or living together. A common law marriage or informal marriage occurs when a man and a woman agree that they are presently married, live in Texas as husband and wife, and tell others that they are married. See Tex. Fam. Code § 2.401(a)(2). All elements must be present for the informal marriage to exist, and the existence of these elements a fact question.
Recently, in In re Estate of Summers, No. 14-13-00816-CV (Tex. App.—Houston [14th Dist.] Jan. 8, 2015) the court determined that no informal marriage existed. Though the couple lived together and may have introduced themselves as husband and wife, evidence showed that the parties had planned to go to Las Vegas to be married in a ceremonial marriage by an Elvis impersonator. That the parties had that plan to be married sometime in the future means there was no present agreement that they were married and thus no informal marriage.
An informally married couple may sign a Declaration and Registration of Informal Marriage that states information about the parties, that the parties are not related, and an oath that the parties agreed to be married on a particular date, have lived together has husband and wife since that date, and represented to others that they are married. See Tex. Fam. Code § 2.402. The Declaration will be evidence of their informal marriage, but that evidence can be rebutted by evidence rebutting the elements of the informal marriage itself.
In Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998), the couple signed a declaration of informal marriage on January 11, 1990 stating that they had been married since August 4, 1988, yet the Court found, like in In re Estate of Summers, there was no agreement to be presently married at that date. The Court found that the August date referred to the date the couple agreed to be married sometime in the future and that the couple did not consider themselves married until they signed the declaration. Thus from August 4, 1988 through January 11, 1990, there was no informal marriage because “[c]ommon law marriage requires that there be some agreement presently to be married, not to marry sometime in the future.” Id. at 515.
So, while the Counting Crows sang about the bliss of being caught unaware by love, it’s much harder to be caught unaware in a legally binding relationship.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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