I have recently had several individuals contact my office requesting a divorce based on a common law marriage.   The most recent inquiry was an individual who had cohabitated with another person for almost 20 years.  They had purchased several homes and had children together.  Even though the persons had never ceremoniously married each other,  the individual requested that we divorce them and have the Court divide their property.  My first comment to him was whether or not they had formally married each other.   The answer was “no”.

Once you get a “no” answer, then the next series of questions will have to be whether or not they have the required elements of a common law marriage.

What does the Texas Family Code say about an Informal Marriage?

In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

What is the parties have been separated over 2 years and they want to declare an informal marriage?   That will not be allow.

If a proceeding in which a marriage is to be proved as “common law” is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

A person under 18 years of age may not (1) be a party to an informal marriage; or (2) execute a declaration of informal marriage.

Furthermore, A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

If the parties have not executed and registered a declaration of informal marriage as prescribed under Tex. Fam. Code § 2.402, a party claiming the existence of a marriage must establish that he or she has met the statutory requirements for an informal marriage enumerated above and had the capacity to enter into the marriage.

The following parties cannot enter into an informal marriage:  a person under the age of eighteen;  related parties (including an ancestor or descendant, whether by blood or adoption; a brother or sister, whether by whole or half blood or by adoption; a parent’s brother or sister, whether by whole or half blood or by adoption; a brother’s or sister’s son or daughter, whether by whole or half blood or by adoption; a current or former stepchild or stepparent; and a son or daughter of a parent’s brother or sister, whether by whole or half blood or by adoption); and  a person who is presently married to someone who is not the other party to the informal marriage.

The informal marriage begins when all the statutory elements are concurrently satisfied in Texas and the parties have the capacity to marry. An informal marriage, like a ceremonial marriage, lasts until it is dissolved by death, divorce, or annulment. An informal marriage has the same legal consequences and effects as a ceremonial marriage.

If you plan on pursuing an informal marriage without a ceremony,  execute and file with the county clerk a declaration of an informal marriage.   Issues will arise if you acquire real property while you are simply cohabitating with the other purchaser.   There is a legal recourse if the foregoing is the case; however, I will get into that process in a future article.