Common law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas. Texas law states that a common law marriage may be proved by evidence that the couple:
Note: The language above is quoting directly from the Texas statutes. The Texas Legislature has not yet amended the statutory language since the Supreme Court's decision in Obergefell v. Hodges [PDF], but despite that, same-sex common law marriages are now recognized in Texas. See the resources below to learn more about common law marriage in Texas.
Texas law does not require the couple to be together for a specific period of time before they can declare themselves to be in a common law marriage. As long as both parties agree to the three elements listed in Section 2.401, they meet the requirements of a common law marriage. See the resource below for more details.
While it is not a requirement, couples can register their common law marriage by filing a declaration with the county clerk.
For couples that choose not to declare their common law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested in order to "prove" the marriage.
If no declaration was filed and there is a dispute as to whether a common law marriage existed, it may be necessary to go to court in order to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings. Since these types of court proceedings are often complex in nature, it is best to consult with an attorney or a family law practice guide for more information about your options.
See the resources below for more details.
Ending a common law marriage in Texas is similar to ending a formal marriage. If a common law couple decides to split up, they must file for divorce. See our Divorce guide for more on how to file. Please note: If court proceedings are not filed within two years of the separation, Texas law presumes a common law marriage never existed unless it is proven otherwise. See the resources below for more details.
Since the United States Supreme Court's 2015 decision in Obergefell v. Hodges which legalized same-sex marriage in every state, same-sex couples can enter into a common law marriage in Texas. Even though the Supreme Court's decision was made in 2015, the TexasLawHelp.org article below states that couples may use the earliest date at which they satisfied all the requirements of an informal marriage as their legal marriage date.
For those who are currently incarcerated within the Texas Department of Criminal Justice and have not declared their common law marriage with the county clerk, both the incarcerated person and the common-law spouse may submit to the warden an Affidavit of Informal Marriage form for visitation purposes. The incarcerated person may file an unsworn affidavit while the spouse must have their affidavit certified by a notary.
See the TDCJ Visitation policy below for more information on proving a common law marriage for contact visits.
The Texas Department of Criminal Justice does not have a sample affidavit available online. We recommend contacting the prisoner's unit for more information on filing this affidavit.
These e-books contain information on issues related to common law marriage. These e-books can be viewed by those who have signed up for a free library account with the State Law Library. Only Texas residents are eligible to sign up. Signing up is free.
See Volume 1, Objective B1 for information on establishing the marriage relationship.