Are We Common Law Married in Texas? How It Is Proved

Can I claim common law marriage if we never had a wedding?

Yes. A wedding is not required for an informal marriage in Texas. Texas Family Code § 2.401 recognizes a marriage when a couple agreed to be married, then lived together in Texas as spouses, and represented to others that they were married. No license, ceremony or officiant is involved.

What the law requires instead is proof of all three elements at the same time. Living together alone is not enough, and neither is a private feeling of being committed. The agreement has to be a present agreement to be husband and wife, not a plan to marry later. Couples who were engaged, or who talked about marrying "one day," usually do not meet that element.

There is no minimum period. A couple can be informally married after a short time together, and partners can share a home for many years without ever being married.

Do we need to file anything to be considered common law married?

No, filing is not required, but it is the clearest proof. Under Texas Family Code § 2.402, a couple can sign a declaration of informal marriage on a form provided by the county clerk. Both partners swear that they agreed to be married on or about a stated date, lived together as spouses afterward, and represented to others in Texas that they were married.

Without a declaration, the marriage can still be proved in court with other evidence. That is where most disputes arise, because the couple never wrote down when, or whether, they agreed to be married.

What evidence proves the agreement to be married?

Courts look at everything the partners said and did. The agreement can be shown with direct testimony or with circumstances that point to it. Common evidence includes:

• Joint tax returns filed as married, or returns that list the other person as a spouse
• Insurance, retirement and employment forms naming a spouse
• Leases, mortgage applications and bank accounts describing the couple as married
• Introductions as "my wife" or "my husband" to family, friends and coworkers
• Wedding rings, a shared last name, anniversary cards and family photos

Text messages can help prove a common law marriage. A message calling the other person "my husband" or discussing "our marriage" is evidence of holding out and can support the agreement. A message saying "we're not married" or "I'd never marry you" cuts the other way. Messages are weighed with everything else, and the court decides how much they show.

Evidence on the other side matters just as much. Separate tax returns filed as single and forms signed as "unmarried" are often the strongest proof that no agreement existed.

Does buying a house together create a common law marriage?

No. Buying a house together does not create a marriage. Many unmarried partners own property together as co-owners. What matters is how the purchase was described. A deed or loan application that lists the buyers as "husband and wife" is evidence of holding out as married. A deed that lists two single persons is evidence against a marriage.

If the couple was not married, the house is divided according to the deed and the law of co-ownership, not the divorce rules. If a marriage is proven, the house may be community or separate property depending on when and how it was bought. See property division for how Texas divides a home in a divorce.

Can we be common law married if we have children together?

Yes, but having children does not make a couple married. Children are not one of the three elements. They can be part of the evidence, for example when parents gave the children a shared last name or described each other as spouses at school.

Rights to the children do not depend on marriage. Custody, possession and child support for children of unmarried parents are decided in a suit affecting the parent-child relationship, and a father who was not married to the mother may need paternity established first. See paternity and parental rights.

What if my partner says we're married but I never agreed?

Then there is no informal marriage, if the evidence shows you never agreed. The agreement must be mutual. One partner believing, or saying, that the couple is married does not create a marriage. The partner claiming the marriage has to prove all three elements, including your agreement.

The difficulty is that a court decides agreement from the evidence, not from what each person says now. If you signed forms as a spouse, filed joint returns or introduced your partner as your spouse, those facts will be weighed against your testimony. A lawyer can review the record with you before you respond.

What happens if one partner was already married to someone else?

An informal marriage cannot begin while either partner is still married to someone else. Texas Family Code § 2.401(d) bars it, and § 6.202 makes a marriage entered during an undissolved prior marriage void.

The law gives one path forward. Under § 6.202(b), the later void marriage becomes valid when the earlier marriage is dissolved, if after that date the couple lives together as spouses and represents to others that they are married after that point. In these cases the dates of the prior divorce and of the couple's conduct afterward decide the outcome.