Note The library cannot tell you what the law means for your situation.
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 U.S. Supreme Court's decision in Obergefell v. Hodges, Despite that, same-sex common law marriages are now recognized 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.
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.
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.
The Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation. This can be used by a person who:
Both the inmate and their common-law spouse can submit the affidavit to the warden. The inmate can file an unsworn affidavit. The spouse must have their affidavit certified by a notary. See the TDCJ Visitation policy below for details.
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 titles contain information on issues related to common law marriage. They 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.
Note The library cannot tell you what the law means for your situation.