Many couples in Texas choose to live together without going through a formal wedding. Some of these couples even choose to have children. These relationships often last for many years and do not end until one of the parties dies. A common question asked by persons in long term non-marital relationships is “When do such relationships become ‘common-law marriages’?”
The history of common law-marriage
Common-law marriages were originally a legal process that substituted the will of the couple for an ordinary marriage. After the Civil War, as the nation expanded westward, a number of states passed laws allowing couples to enter into a common law marriage because there were not enough ordained ministers or justices of the peace to perform weddings for every couple who wanted to marry.
These laws varied from state to state, but all of them prescribed a list of formalities that needed to be fulfilled before the couple could hold themselves out as being in a common-law marriage. Common law marriages have now disappeared from all states except Texas and Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma and the District of Columbia.
Common-law marriage in Texas
To form a common-law marriage in Texas, the couple must agree between themselves to be married. An agreement to marry “someday” is not effective. The couple must live together as man and wife within the state. Finally, the couple must represent to third parties that they are married. A “secret” common law marriage is not valid for any purpose.
The consequences of a common-law marriage
Perhaps the most common effect of a common-law marriage is on the disposal of property if the couple splits up. The couple’s assets must then be divided in the same manner as a normal divorce. If a common-law couple has children who have not reached majority when the couple splits up, untangling the issue of whether the couple was married can be an especially worrisome issue.
Any couple who has lived in a long-term relationship and who wishes to know if they have been engaged in a long-term marriage may wish to consult an experienced estate planning attorney. A knowledgeable lawyer can provide helpful advice on whether the couple formed a common law marriage and whether the state of their relationship will affect how their assets will be divided and who will pay support for the couple’s children.
