How To Get A Common Law Marriage in Texas

Unlike many states, common law marriage is legal in Texas and follows some requirements. With cohabiting becoming more common in almost every state in the union, we'll break down each step of the process on this page. We'll update this page with relevant new laws as they are implemented.

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Common Law Marriage is a way to be married with foregoing some of the formalities that come with traditional marriages (such as the ceremony and party afterwards). Contrary to popular belief the amount of time you’ve been living with your spouse, or how long your spouse has been living with you, is completely irrelevant to whether or not you can be granted a common law marriage. One note on terminology, the official state law of Texas refers to common law marriages as “Informal Marriage” in the law and details of the law can be found in section 2.401 and 2.402 of the official law.

What is a Common Law Marriage

In Texas, a common law marriage is a marriage that fulfills the requirements of a common law marriage (next section). Not very helpful, but important to note a couple things at this stage. First, Texas is actually pretty rare in allowing common law marriages as most states have outlawed them in some sense. Second Common Law marriages require some form of evidence in order for the marriage to be granted.

Texas’ legal guide for common law marriages identifies three types or forms of evidence that couples may use in order to prove their eligibility for a common law marriage:

  • Agree to be married.
  • After the agreement they lived together in this state as husband and wife.
  • Appeared to others (the text says “represented”) that they were in fact married.

Requirements For A Common Law Marriage in Texas

In Texas, there are several stipulations that must be met in order to be granted a common law marriage. Many of these conditions are similar to that of conditions for getting an annulment in Texas. First and foremost you must not be already married to someone else at the time that you seek the common law marriage. Second, you and your partner must be over the age of 18 at the time that this process begins. Perhaps most importantly, you must both be in agreement about wanting to be married. In other words, the process must be mutually consensual.

Furthermore, after agreeing to this arrangement, you must have lived as a married couple within the state of Texas. Texas is somewhat unique in that you need to have identified yourself to others that you were “married” or at the very least not portrayed yourself as single during the period in question. In the official statutes of the family code, the document (below) will indicate: full name, including the woman’s maiden surname, address, date of birth, place of birth, including city, county, and state, and social security number. Additionally the form will ask that the parties are not ancestors, members of the same family, or whole or half blood members (whether by adoption or not).

Can Same-Sex Couples Get A Common Law Marriage

Though the law has yet to be updated to include same-sex couples, currently it is legal for same-sex couples to get a common law marriage in Texas. After Obergell v. Hodges, state laws outlawing the practice were overturned by the Supreme Court’s ruling. For more information, read our up to date page on gay marriage laws in Texas.

Is a Common Law Marriage Different?

The section will be brief because the answer is no. The only substantive difference between a common law marriage and a “normal” marriage is the process for getting married. As far as the state is concerned, a couple married via an informal marriage is viewed the exact same in the eyes of the state.

Who is Ineligible for an Informal Marriage?

Outside of filling out the necessary paperwork and providing identification as requested by the clerk, the state makes you indicate that the two of you are not related in any of the following six ways.

(A) An ancestor or descendant by blood or adoption;

(B) A brother or sister, of the whole or half blood or by adoption;

(C) A parent’s brother or sister, of the whole or half blood or by adoption;

(D) A son or daughter of a brother or sister, of the whole or half blood or by adoption;

(E) A current or former stepchild or stepparent (note this does not include step sisters or step brothers);

(F) A son or daughter of a parent’s brother or sister, of the whole or half blood or by adoption.”;

How To Get An Informal Marriage (Also Known As Common Law Marriage) in Texas

In Texas, the necessary form to procure a common law marriage is called a Declaration of Informal Marriage (below). Feel free to download the file or visit the official state site in order to download the official form. Outside of the official personal information, the form will ask you to agree to the following:

I solemnly swear (or affirm) that we, the undersigned, are married to each other by virtue of the following facts: on or about ________ we agreed to be married, and after that date we lived together as a married couple and in this state represented to others that we were married. Since the date of marriage to the other party I have not been married to any other person. This declaration is true and the information in it which I have given is correct.

History of Common Law Marriage

There’s two key legislative periods when common law marriage (i.e. Informal Marriages) took hold in Texas. The legislative session in 1997, 75th. Legislative session, and the 79th legislative session in 2005.

1997: Marriages Are Presumed Valid

In 1997, Texas made the stance that Marriages are to be presumed valid. A reoccurring theme in Texas is the focus on the family and taking steps to ensure the stability of the institution. The official act reads as follows:

..in order to provide stability for those entering into the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.  Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997

2005: No More Marriages of Step Parents

In 2005, the state passed SB 6 or the full title 79(R) SB 6 which is going to, among other things, expand the definition of when marriage should not be legal among siblings. The two stipulations were added to the record:

  • A current or former stepchild or step parent.
  • A son or daughter of a parent’s brother or sister, of the whole or half blood or by adoption.

Additionally, the bill would make it illegal (sec. 2.403) and a Class A misdemeanor if one provides false information in the documentation in attempting to prove the validity of the relationship. However it is important to note that it’s only a misdemeanor if the state can prove that the person committing the offense knew they were deceiving the courts.