Common Law Marriage

May 9, 2005

. Texas is one of the dwindling number of states that continue to recognize the informal or “common law” marriage. Basically it works this way: if you act like you are married, the state could consider you married even if you never got a liscense to marry or had a marriage ceremony.

The issue of common law marriage usually comes up when the practitioner is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party want to be married, it is usually just best to follow the KISS principal and “fagetaboutit”.

In those cases where one side is trying to assert a community property interest in a putative “martial estate”, the first issue you must deal with is: “was there a marriage?”

Under TFC 2.401(a)(1), you can have a court declare that a marriage exists if you have a written declaration of marriage. I can’t imagine a real life scenario where this would happen, but if you can think of one, then I’d love to hear about it. I mean, afterall, wouldn’t you just get a marriage liscense?

The much more “common way” for a “common law” marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:

  1. The parties agreed to be married;
  2. they lived together as husband and wife;
  3. they represented to others that they were married.

Remember that once established, the “common law” marriage is just a binding and valid as the formal, ceremonial kind.


Goin to the Chapel..maybe.

May 9, 2005


Goin to the Chapel, eh? Well hold on there partner. You ‘ve got some hurtles to go through first.

First, you must obtain a marriage lisence from a county clerk in Texas. However, you are under no obligation to obtain that liscense from a county where either party lives. You also don’t have to have the wedding where the lisense was obtained. (2.004).

You do, however, have to be old enough to get married. Eighteen is the age when you can do this without anyone’s permission. You can get married as young as fourteen (God forbid anyone giving you that permission). A youngster can get married if they provide within 30 days of an application for marriage a written sworn consent form from either their legal guardian or parent. The youngster can also petition the court- apparently even when the legal guardian or parent refuses to give permission. (2.009(a)(4)(C). I think this that such a situation would be open for a constitutional challenge.

And as unsettling as it is, in Texas, you can marry your first cousin. Yuck. Thankfully siblings (full or half-blood or by adoption), your uncle or aunt, your children, or your neice or nephew are still off limits. (2.001(b)(6); 2.009(a)(5)).

If you ever get a client who is fourteen years old asking you to petition the court for permission to marry her first cousin remember- even if it is Jerry Lee Lewis, you just say NO!

Getting Hitched- Shot Gun and Other Formal Marriages

May 8, 2005

The issue of what are the requirements to obtain a marriage are rarely, if ever a matter for a lawyer to address. But for the sake of completeness, I will include this first chapter in the road to marital relations law in Texas.

The topic is covered in some detail in the Texas Family Code under section 2.

The marriage application requires an applicant to declare whether or not he or she is delinquent on ordered child support. The clerk may not however refuse to grant a liscense on this ground (2.009(d)).

In case you were wondering, same sex marriages are not permitted in Texas. Will this change in the near future- dream on. However, this does not mean that the topic of same sex civil unions is a moot issue in Texas. People do what they are wont to do and a bunch of legislators in Austin aren’t about to stop that. I will deal with same sex unions in a later posting.

NEXT: “Goin’ to the Chapel..”


May 8, 2005

Thanks for checking out my new blog site. It has been designed as (perhaps) Texas’ First COMPREHENSIVE Family Law Blog.

In the coming weeks and months I hope to address all the major topics in family law. I will be exploring Titles 1, 2, 4 & 5 of the Texas Family Code including some probable detours along the way. I’ll also most likely be adding a little of my own color commentary just to keep the reading interesting. With a comprehensive approach, I hope to produce a valuable resource for the non-family law attorney looking for quick answers to Texas family law questions.

Please offer any comments you have to the topics discussed. With more input, we will have a much more valuable on-line resource.

Once again, thanks for your time, and I hope to hear from you real soon.