Many misconceptions exist as to whether someone has a common law marriage. It is actually quite easy to create a common law marriage if you are not careful.
The law requires only three things to establish a legally binding common law marriage:
- An agreement between the parties to be married;
- The parties live together in Texas as husband and wife (for any amount of time and it does not have to be continuous);
- The parties represent to others that they are married.
Sounds relatively easy, right? However there are many hurtles that one must get through to determine if a common law marriage has been created.
The hardest thing to establish is that an agreement existed. This requires that there be a meeting of the minds between the two parties that they are now married. The case law in Texas states that there must be evidence that shows that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife.
This is NOT an agreement that they will get married, intend to get married, make a promise to get married in the future or make plans to get married in the future. Instead it is an agreement where the parties agree that THIS MOMENT FORWARD WE ARE MARRIED! It is not always possible to prove or disprove this element without some circumstantial evidence. The intent of the parties can be shown with circumstantial evidence, such as the following:
- The parties wear wedding bands;
- The parties celebrate a wedding anniversary date;
- The parties file joint tax returns;
- The parties announce their wedding to family members;
- The parties host a party to celebrate their union; and
- The parties refer to each other as “husband” and “wife”.
Many people think that a couple have to live together for a certain amount of time, however, this prong does not suggest any time limit. Instead, it requires that the couple, after making their agreement, start living together as husband and wife in the state of Texas. Many misconceptions arise around what it means to live together as husband and wife. The way to answer this is to look at the difference between a husband/wife relationship versus a boyfriend/girlfriend room mate relationship. In the first one, the couple each have duties they take on, such as, the wife doing laundry, cooking, taking care of the children, and the man takes on such choirs as taking care of the lawn, fixing things and taking out the trash. The couple also would likely have a joint bank account, even if it is not their only account, and they should be paying the bills together as a married couple would do. They should both be disciplining the children, going on vacation with the children, attending school events with the children, etc.
REPRESENT TO OTHERS:
The last prong and easier prong to prove is “representing to others that you are married”. This prong merely requires that take some sort of directed action to make others think you are in fact married and not just living together. This usually means you call each other “husband” and “wife”, you file joint tax returns, you enter into contracts for services as husband and wife, you never correct people when they assume your married, you celebrate a wedding anniversary, you change your social media status to “married” or you wear wedding bands. It does not require all of these things but instead only a few actions that caused people to believe you were married.