What is a ‘common law’ marriage? Most people believe it is when two people live together as a couple for some amount of time. Two years is a common time-frame stated. But Texas has a specific three-pronged test.
Under Texas law, to prove a common law marriage, the three prongs are:
- There is an agreement to be married; and
- After the agreement, the two live together in Texas as husband and wife (now probably as a married couple, not just male and female, after Obergefell v. Hodges); and
- The couple represented to others in Texas that they were married.
— Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.–Houston [1st Dist.] 1991, writ denied.
The agreement to be married, cohabitation, and representing to others can be established by direct or circumstantial evidence.
The most difficult part under this test is proving that there was an actual agreement between the two persons to be married. Most evidence that might be relied on would be things such as statements to the public made by the parties, tax returns showing the parties filed a joint-married, holding property together, or even listing both names on bank accounts or other assets. Courts have parsed this evidence out as not evidence of an agreement to be married, but rather fitting under the ‘representing to others’ prong. For example, attending social events and having the parties refer to each other as spouses only fits under the second prong, and is not evidence of an agreement to be married. The Estate of Francis W. Sinatra, Jr. v. Sinatra, 13-14-00565-CV (Tex.App. Dist.) 2016. Moreover, when there is direct evidence which definitely shows that there was no agreement, an agreement cannot be implied.
Why does it matter if there is a common law marriage? Well, when couples that never formally married decide to separate, there are very different outcomes depending on if a common law marriage exists. This is especially true if one person dropped out of the workforce to raise children, and those children are now grown. If a common law marriage is found to exist, that person will have access to the assets accumulated during the course of the common law marriage. Those assets could be substantial. If there is no common law marriage, that person is likely forced to walk away and take only what their partner chooses to give them.
What should a person do if they are not formally married and living with someone? Make sure the two of you are on the same page. Make sure that each has thought through what happens if you separate. And then make sure any agreements are in writing while you both are on the same page. This could be a cohabitation agreement, a written statement of agreement of common law marriage, or a number of other things.