Most have heard other people say, “We are common-law married.” However, most of the time people are under the false impression that they are married, when in fact they are not married at all. This can lead to a host of issues, from trying to probate under the impression that you are married when you are not, if the relationship breaks up and then down the road the other party files a divorce proceeding, as well as many other possible issues.
Texas law does recognize “common law” marriage, however most courts prefer not to recognize it. Under the Texas Family Code, to prove that an informal (common law) marriage existed a few things must be proved to a court. The first and best route to have an informal marriage is for the two parties to the marriage to sign a declaration of marriage as provided by section 2.402 of the Texas Family Code. This is often called an informal marriage certificate, to obtain such a certificate you must go to the County Clerk and fill out a form and pay a filling fee. This fee is less than a standard marriage certificate.
If there is not informal marriage certificate, then it is more difficult to prove an informal marriage. To prove an informal marriage without a certificate, the party attempting to prove the marriage must show the following; (1) there is an agreement between the parties to be married; (2) the parties lived together as spouses; and, (3) the parties represented to others they were married. Generally, number two and three are easy to prove if there was indeed an informal marriage. However, proving an agreement to be married is difficult. Any agreement must be mutual and a present agreement that occurred at the same time the parties were living together and were representing to others they were married.
If you and your partner’s intent is to be married and have the full legal protections of marriage, the best option is to go to your County Clerk and sign a declaration of informal marriage and pay the fees associated with it. This route is less costly than having to prove an informal marriage without a declaration.