Monday, May 09, 2005

Common Law Marriage

. Texas is one of the dwindling number of states that continue to recognize the informal or "common law" marriage. Basically it works this way: if you act like you are married, the state could consider you married even if you never got a liscense to marry or had a marriage ceremony.

The issue of common law marriage usually comes up when the practitioner is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party want to be married, it is usually just best to follow the KISS principal and "fagetaboutit".

In those cases where one side is trying to assert a community property interest in a putative "martial estate", the first issue you must deal with is: "was there a marriage?"

Under TFC 2.401(a)(1), you can have a court declare that a marriage exists if you have a written declaration of marriage. I can't imagine a real life scenario where this would happen, but if you can think of one, then I'd love to hear about it. I mean, afterall, wouldn't you just get a marriage liscense?

The much more "common way" for a "common law" marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:
  1. The parties agreed to be married;
  2. they lived together as husband and wife;
  3. they represented to others that they were married.

Remember that once established, the "common law" marriage is just a binding and valid as the formal, ceremonial kind.