Most states in America do not recognize an informal or common-law marriage. Texas is one of only nine states that does recognize this form of matrimony. Despite the fact that formality is not required for a common-law marriage to exist, a couple married at common law is still required to appear before a court in order to obtain a divorce.
An informal marriage may not be entered into by a man and woman who would not be allowed to get married in a traditional marriage. For instance, both of the parties must be 18 years of age or older to establish an informal marriage. In addition, if one of the parties is currently married to another person, the informal marriage will be void.
A couple must meet three statutory requirements to prove an informal marriage:
- The parties must agree to be married.
- The parties must live together in Texas after the agreement.
- The husband and wife must represent to others that they are married.
An informal marriage does not exist until all three elements have occurred. It is not necessary for all three elements to occur at the same time.
Third requirement: Holding out
A term that is often used in connection with the third requirement is "holding out." An Austin Chronicle article notes that there are several ways the husband and wife can hold themselves out as being married, including signing documents as husband and wife or introducing themselves to others as husband and wife in social settings.
A recent court decision shows how difficult this showing may be. The law requires more than occasional references to each other as husband and wife. In this case, the "holding out" factor was not met where there was no evidence that anyone in the community saw or knew of the representations contained on the couple's insurance policy and in their credit report that they were married.
A couple that has satisfied the elements for an informal marriage may validate it in one of two ways. The first method is to file a Declaration of Informal Marriage in the courthouse in the county in which the husband and wife live. The declaration must contain an oath by which the husband and wife can attest that they have met the legal requirements to be joined in an informal marriage.
In the alternative, the couple may appear before a court. However, if the couple does not commence a proceeding to prove the informal marriage before the second anniversary of the date on which the parties separated and stopped living together, there is a presumption that the parties did not enter into an agreement to be married.
If an informally married couple decides to divorce, the parties will have to go through the divorce process in a court like traditionally married couples. During this proceeding, the court will determine how the couple's property will be divided, if there will be support obligations and any custody issues.
If you are contemplating divorce, contact a local family law attorney who can review your circumstances and guide you through the legal process.