Common Law Marriage in Texas – Does it Apply to Same Sex Couples?

In July 2015, Texas Family Code section 2.401 still provides that an informal marriage (common law marriage) occurs between a man & a woman when:

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

With the United States Supreme Court’s decision in Obergefell, it is likely that courts will now read the statute to provide that any couple who agrees to be married, lives together as spouses, and represents to others that they are married will be informally married. People often refer to this as common law marriage. Note that there is no minimum time limit that the couple must live together. There are many misconceptions about common law marriage.

Same-Sex Couples Should Now Be Concerned

Same-sex couples who never had to worry about being accidentally married should now be concerned. Historically, when a domestic relationship ended one of the parties could file for divorce alleging an informal or common law marriage. The first element of the test, an agreement to be married, only requires the testimony of one party. If they shared a residence, a sexual relationship, and represented themselves as spouses, then the testimony of one that they had an agreement to be married is usually sufficient.

Same-sex couples who may have referred to each other as spouses and lived together in Texas might find themselves unintentionally married.

There is no informal or common law divorce in Texas. Like any other marriage, an informal marriage ends by death or divorce. An interesting question in these cases is the date on which the informal marriage began. A judge or jury is asked to determine the earliest date on which all three conditions first occurred. That is the date on which the spouses began accumulating community property.

Impacts Of Being Common Law Married

The two biggest impacts of being common law married are

1. Community property laws apply
2. Traditionally, children born during the marriage are presumed to be the children of the husband and no evidence of paternity is required. Texas courts have not looked at this yet in terms of the Obergerfell decision and it will probably take a few legislative sessions to resolve presumed paternity in same-sex relationships.

Here is an article I wrote about community property and separate property, and how they are accumulated: What is Community Property in Texas?

At the time of divorce, all property owned or possessed by either spouse is presumed to be community. The burden of proof that it is not is heavy. Texas law sets the bar high to prove separate property without a marital agreement (prenup or postnup). There is no automatic 50/50 division of community property. People sometimes think that if they are informally married the spouse will receive half of the community property. In reality, the spouse could receive more or less depending on many factors. Read here for more about dividing property in divorce.

A Cohabitation Agreement is the surest way to avoid being informally married.

All of the agreements available online at mcnamaralawyers.com are gender neutral. The law is in flux about how informal marriage will be applied to same-sex couples and the changes that will be made to Texas law. It is possible that the legislature will do away with common law marriage rather than extend it. An argument can be made that it is outdated and serves no purpose in modern Texas. Regardless of the ultimate outcome, an unmarried cohabitation agreement is the surest way to avoid being married by accident and I cannot foresee a downside to it. The agreement offered on mcnamaralawyers.com specifically states that the couple may marry at any time, and provides the assurance of not finding out later than you are unintentionally married.