Clients come into our offices complaining that they did not divorce their previous marriage before getting married again to another person.   Their question is – is my current marriage valid?   The answer is usually an unequivocal “No”.   In general,  a person can not be married to 2 persons at the same time.

In order to promote the public health and welfare and to provide the necessary records, Texas laws provide specific and detailed rules to be followed in establishing the marriage relationship.  However, in order to provide stability for those entering in to the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of the State of Texas to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.  Therefore, every marriage entered into in the State of Texas is presumed to be valid unless expressly made void by Chapter 6 of the Texas Family Code or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter.

In cases adjudicated in Texas, the general rule is that a marriage valid where contracted is valid everywhere and that one void where contracted is void everywhere.  The validity of the marriage is generally determined by the law of the place where it is celebrated.

Once a common-law marriage exists, it, like any other marriage, may be terminated only by death or court decree.  The spouses’ subsequent denials of a common-law marriage do not undo the marriage.  Texas’s policy of supporting the validity of marriage applies to lawful marriages.   Under the Texas Family Code Section 2.401 prohibits a person under the age of 18 from entering into informal marriage even with parental consent.   This is a very important provision under Texas law for persons under the age of 18 attempting to prove a common-law marriage.

When a marriage license and certificate are placed into evidence, in a Texas Court, all reasonable presumptions will be in favor of the validity of the marriage.   In Texas, the validity and presumption in favor of the validity of a marriage that has been shown to have been contracted is one of the strongest known to law.  The strength of the presumption increases with lapse of time.  The presumption, itself, is evidence and may outweigh positive evidence to the contrary.

However, when 2 or more marriage of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.

To rebut the presumption of validity, a person must prove that a marriage is either void or voidable as provided by Texas Family Code chapter 6, Suit for Dissolution of Marriage.  Typically, the ground alleged for rebutting the presumption of a valid marriage is that the petitioner is currently married to another person and that the earlier marriage has not been dissolved.

In many Texas cases, the Courts have stated that the presumption that the most recent marriage is a valid one continues until the impediment of a prior marriage and its continuing validity is proven.  To rebut the presumption that the most recent marriage is valid, it is not necessary to prove the nonexistence of divorce in every jurisdiction where proceedings could have been possible.  It is necessary only to rule out those proceedings where one might reasonably have been expected to have pursued them.  The strength of the presumption that the most recent marriage is valid increases with the lapse of time, acknowledgments by the parties to the marriage, and the birth of children.

The best advise to persons is to make certain that if you are in a marriage in Texas to have your  divorce decree in hand and prior to getting into a new marriage to avoid issues with validity.