How can a couple validate a common-law marriage so that it is legally recognized?
A couple who wishes to validate their common-law marriage (called “informal marriages” under Texas law) can fill out a Declaration of Informal Marriage. The Declaration must be signed on a form prescribed by the Bureau of Vital Statistics and provided by the county clerk. The Declaration must include an oath that proves the three elements of common-law marriage – i.e., there was an agreement to be married between a man and woman, the couple lived together in Texas as husband and wife, and the couple “represented to others” that they were married. Check out section 2.402 of the Texas Family Code (www.capitol.state.tx.us/statutes/fa.toc.htm) to see all of the information required to be in the Declaration. In a situation where the marital status of the couple is challenged and a Declaration was never filed, the couple could attempt to prove up the elements of the informal marriage in court. The couple would be required to show evidence on each element of common-law marriage, which could be satisfied by sworn testimony that demonstrates the elements mentioned above have been met.
Does a common-law marriage have the same legal effect as a traditional marriage (i.e., one involving a marriage ceremony and license)?
Yes. Having a legally established informal marriage can be important for several reasons, including child custody, community property, and inheritance issues. Remember, however, that the informal marriage will not afford these rights until the marriage has been legally established.
Will my common-law marriage under Texas law be recognized in other states around the country?
Only a handful of other states recognize common-law marriages in the same way as Texas. The majority of states require a couple to go through a licensing procedure and/or marriage ceremony to legally recognize the marriage. Anyone that is common-law married in Texas and is considering moving to another state should speak with a family-law attorney in that state.
Be sure to check out the Travis County Web site (www.co.travis.tx.us/dro/common_law.asp) for other frequently asked questions about common-law marriage in Texas.
This article appears in October 22 • 2004.