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I have been living with my signficant other for six months. Does that mean we are common law married?

By carrillojm65344, Jan 6 2017 07:21PM

That is a question I get asked quite a bit. Texas is one of the few states that still recognizes common law marriages. The short answer to the question above is no. Texas Family Code Section 2.401 addresses how a couple can have a common law marriage.

Section 2.401 states that a man and a woman can prove their marriage with the following evidence:

1. A declaration of their marriage has been signed as provided by Subchapter E of the Texas Family Code; or

2. The man and woman agreed to be married, they lived together in Texas and they held themselves out as a married couple to others.

Section 2.402 lays out the requirements for satisfying part 2.401(a)(1). For those of you wanting to make it very clear that you want the common law marriage to be recognized should follow the steps in Section 2.402 of the Family Code.

Evidence satisfying Section 2.401(a)(2) will be more case specific. However, actions such as filing joint income tax returns as husband and wife, bank accounts, utility statements and how property is titled could all show a common law marriage.

For those of you out there that want to make it clear that you and your significant other do not want a common law marriage, you may want to consider a cohabitation agreement. There is no case law affirming cohabitation agreements, but the language of Section 1.108 of the Texas Family Code states:

"A promise or agreement made on consideration of marriage or nonmarital conjugal cohabitation is not enforceable unless the promise or agreement or a memorandum of the promise or agreement is in writing and signed by the person obligated by the promise or agreement." (emphasis added)

One of the primary purposes of a cohabitation agreement is to make clear that he parties do not want an informal/common law marriage. A party can use the written cohabitation agreement to defeat an assertion by an opposing party of the existence of a common law marriage.

If you have any questions about common law marriages or cohabitation agreements, give our office a call.

In addition to family law, our office also handles personal injury, criminal defense, business collections, civil litigation, real estate, oil and gas and business formations.

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