Establishing an Informal “Common-Law” Same-Sex Marriage in Texas

Texas Couples who live together for a significant amount of time often share a relationship that functions and appears like an official marriage. This is especially true when the couple has been raising children together. Texas law, like many U.S. jurisdictions, allows for an informal marriage (colloquially known as a “common-law” marriage) to be entered into for a couple to enjoy the privileges, obligations, and protections of marriage. The application of Texas’s informal marriage statute is not completely clear with regard to same-sex couples seeking spousal benefits, divorce, or custody determination by a state court. One member of a same-sex couple was recently denied an appeal for her divorce petition against her former partner, as the Texas court ruled that the requirements for an informal marriage were not met in this case.

The plaintiff in the recently decided case is a woman who was in a relationship with the defendant for approximately 8 years. According to the facts discussed in the appellate opinion, the defendant gave birth to two children throughout the parties’ relationship, and the couple raised the children together as a family unit. After the couple broke up, the plaintiff sued the defendant for divorce, alleging the parties had a valid informal marriage and seeking a division of property, as well as shared custody of the children. The district judge dismissed the plaintiff’s petition, finding that the parties were not married and she had no standing to sue the defendant.

Texas law allows for a valid informal marriage under two sets of circumstances. First, a couple can file a declaration with the county clerk of the county of their residence, stating that they intend to enter into an informal marriage. Second, an informal marriage can be established if (1) the couple agreed to be married; (2) after the agreement, they lived together in Texas as husband and wife; and (3) in Texas, they represented to others that they were married. On appeal, the plaintiff argued that there was evidence to support all three of the second set of factors for establishing an informal marriage.

The appellate court pointed to several pieces of evidence from below when ruling that the district court did not abuse its discretion in dismissing the plaintiff’s petition. The parties filed their taxes as single persons, they referred to themselves as unmarried in several official documents, and at times the parties each discussed with one another that they would “never be married” because the plaintiff was already married to another person. Based on the evidence heard at the district court hearing, the appellate court decided that the dismissal of the plaintiff’s case was valid.

This recent ruling does not foreclose same-sex couples from establishing an informal marriage in Texas. Notably, the court did not rely on the “lived together in Texas as husband and wife” language in the statute as a basis for denying the validity of same-sex marriage. Any Texans who believe they are in an informal or “common-law” marriage can take steps to validate their relationship status without enduring a formal wedding ceremony. If you are unsure if your informal marriage is valid, reach out to a qualified Texas family law attorney to take the steps needed to ensure your rights and privileges are protected.

Speak with an Experienced Forney Family Law Attorney About Your Situation Today

If you or a loved one has questions about the validity of a marriage, or the options of divorce, finding a competent Texas divorce attorney can help resolve your questions with ease. The experienced and knowledgeable Dallas County family law and divorce attorneys with Guest and Gray understand how Texas law can allow for unconventional relationships, and we can help you and your partner ensure that your relationship will be accepted under state law. Our dedicated Texas family lawyers pride themselves on getting our clients the results they deserve. If you’re anticipating a divorce, contact us so we can start preparing your case. Contact our offices at 972-564-4644 and schedule a free consultation today.

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