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“The Legal Corner”

By Sam A. Moak

Common Law Marriage


The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

The common link, and most ironic thing about, in virtually all common-law marriages is that the marriage is not officially recognized until its over.

It was not until the flame had gone out of Emmitt Smith and Hope Wilson’s romance and he had moved on to another relationship that Wilson said she and Smith were common-law husband and wife.

Claims of common-law marriage is not something reserved only for the famous.  Men and women claim to have been common-law married when one party is trying to inherit under the other’s will, receive insurance benefits, bring a wrong-ful death action on the other’s behalf, or share in Social Security disability or worker’s compensation payments.

Common-law marriage is a difficult thing to prove no matter what stage it is in, on or off.  Texas is one of only 11 states, and the District of Columbia, that recognize common-law marriage.  Common-law marriage in Texas has its roots in our rural past.  A man and woman might have lived on a rural ranch together for 50 years, raised children and grandchildren, yet never had a ceremonial marriage because they could not take time off for a daylong trip to the nearest justice of the peace.

Common-law marriage is not just something of the past in Texas.  It is still a viable option.  How is one established?  The governing statute is §2.401 of the Family Code.  This statute states that an informal marriage can be proved either by filing a declaration of marriage with the county clerk or by meeting a three-part test.  Part 1, the couple had an agreement to be married, either explicit or implicit; Part 2, after the agreement, they lived in Texas as husband and wife; and Part 3, they represented to others, often called “holding out,” that they were married.

The existence of a marriage is question of fact.  It can be proved by direct or circumstantial evidence.  The credibility of the parties is extremely important because juries are often inclined to reward individuals they perceive as dutiful victims or punish perceived opportunists.

No magic words are necessary to establish an agreement to be married.  Texas case law has found a common-law marriage existed where evidence showed the maintenance of a common household, raising of a family together, establishing joint financial accounts, purchasing property together, or filing joint tax returns.

In today’s society it is easy to get married formally, some may argue too easy, yet some people never formalize their wedding relationship with a wedding ceremony.  However, based on the problems that can arise without this formalization, it is better to rely on common sense than on common law to secure the future.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.