How to Prove a Common Law Marriage in Texas

Common law marriage, also known as informal marriage, is a legal way for couples to be considered married without a formal wedding ceremony or marriage license. While not all states recognize common law marriage, Texas and several others do, provided specific conditions are met. If you need to prove a common law marriage—whether for legal benefits, divorce proceedings, or estate matters—it’s essential to understand the necessary elements and supporting evidence.

Key Elements of a Common Law Marriage

To establish a valid common law marriage, most jurisdictions that recognize this type of union require the following three elements:

1. Agreement to Be Married – Both partners must mutually agree that they are married. This means more than just an intent to marry in the future; they must consider themselves already married. They must also be legally eligible to marry at that time (i.e., not married to another person).
2. Cohabitation – The couple must live together as spouses. Unlike a formal marriage, cohabitation is not required for a long time.
3. Holding Out to the Public as Married – The couple must present themselves to others as a married couple. This could include using the same last name, introducing each other as spouses, or filing joint tax returns.

Ways to Prove a Common Law Marriage

If a common law marriage is disputed—such as in divorce or probate cases—you may need to provide evidence to support your claim. Here are some common ways to do so:

Signed Declaration of Informal Marriage

In Texas, couples can file a Declaration of Informal Marriage with the county clerk. This document serves as official proof of a common-law marriage, similar to a traditional marriage certificate.

Witness Testimony

Statements from friends, family members, or colleagues who observed the couple refer to each other as spouses can be strong evidence. Witnesses can confirm how the couple publicly presented themselves as married.

Joint Financial Documents

Financial records demonstrating joint ownership or shared responsibilities can support a common law marriage claim. These may include:

• Joint bank accounts
• Shared credit cards
• Co-signed loans
• Jointly filed tax returns

Property Ownership and Lease Agreements

If the couple jointly owns property, shares a mortgage, or both names appear on a rental lease, this could demonstrate cohabitation and an agreement to be married.

Insurance and Beneficiary Designations

Listing each other as a spouse on life insurance policies, health insurance, or as beneficiaries on retirement accounts can help prove a marriage existed.

Correspondence and Communication

Emails, text messages, or letters where the couple refers to each other as spouses may serve as evidence of their agreement to be married. Additionally, correspondence from third parties referring to the couple as spouses can be strong evidence of the couple holding themselves out as married. Even something as simple as a holiday card addressed to both partners by one last name (e.g., “The Smiths”) can support a common law marriage claim.

Misconceptions About Common Law Marriage

Simply living together or having children together does not automatically establish a common-law marriage. There must be clear evidence that the couple agreed to be married and held themselves out to the public as such. Additionally, a person can be married by common law before formally marrying, making the legal status highly fact-dependent.

Rebuttable Presumption and Challenges

If a couple separates and does not take legal action to establish a common law marriage within two years, Texas law presumes they were never married. However, this presumption can be challenged with sufficient evidence.

Final Thoughts

Proving a common law marriage may be necessary in cases of divorce, inheritance disputes, or when seeking spousal benefits. Because common law marriage is determined by factual circumstances, gathering multiple forms of evidence strengthens the case and ensures that the relationship is legally recognized. If you are uncertain about your common-law marriage status, consulting with a family law attorney at the De Ford Law Firm can help clarify your rights and legal options. Book your case evaluation today to see if you qualify for a common law marriage divorce today!

 

Written by Attorney Hannah Kinney.