The Family Code doesn’t talk about it, but there are two kinds of relationships that often happen. One is the “Putative Marriage” where the parties believe they are married, but they are not. The other is the “Meretricous Relationship” also know simply as “living together”.
The Putative Marriage is where the couple believes they are married, but because of a defect in the process, they are not. I experience this in my practice more often than I would have thought possible. The typical case is that one spouse is already married, THOUGHT they divorced and then “married” another person. The couple may have been living together as husband and wife for years, but weren’t ever “legally married” because the one spouse is still married to another.
Under the Family Code, the most recent marriage is presumed to be valid until challenged. Therefore marriage #2 takes precedent over marriage #1. The burden of proof of validity of the earlier marriage is on the spouse seeking to maintain the validity of marriage #1 as against marriage #2. This usually comes up in probate proceedings when two “widows” are contesting who should inherit from the same dead spouse.
If a couple finds they are in a Putative Marriage, the have two choices. If they want to break up, then can file a Suit to Delcare Marriage Void (TFC 6.307). If they want to stay together, the first marriage must be dissolved by filing a divorce suit on spouse #1. After the first marriage is dissolved, the second marriage is automatically validated as long as the couple continues to live together as husband and wife and represents to others that they are married. (TFC 6.202(b)).
If they want to break up, a spouse can receive alimony (maintenance)even in a void putative marriage as long as she or he did not have knowledge that the spouse was already hitched when they got “married”. (TFC 8.060)
Also, the innocent putative spouse may also have the same rights to property division as a legal spouse. (Davis v. Davis, 521 S.W. 2d 603 (Tex.1975).