The Common Law

Common law marriage is recognized the same under Texas law as if the couple were formally married. This means that common law married couples have traditionally needed a formal divorce to legally end the relationship.

But before anyone starts thinking about divorce, the first thing they should do is be sure that they are actually common law married. Three elements must be present to form a common law marriage under Texas law: 1) the man and woman must have "agreed to be married;" 2) the couple must have held themselves out to the public as being married; and 3) the couple must have lived together in Texas as husband and wife. Check out previous Common Law articles on the Austin Chronicle Web site that discuss common law marriage in more detail.

Assuming a common law marriage exists, either person can file for a formal divorce. This is almost always advisable if there are contested issues involving property, finances or children. In a formal divorce proceeding, things like child support, child visitation, and community property issues will be decided by the court.

A second option that may help some couples end their common law marriage is set forth in a provision of the Texas Family Code, which was passed nine years ago. Under this law, if neither person asserts that a marriage existed within two years of the date when the parties stopped living together in Texas, then a presumption exists that the parties never entered into a marriage in the first place. While this does not automatically mean that the marriage never existed, it does mean that the burden to prove it existed falls to the person trying to demonstrate there was a legitimate common law marriage.

Accordingly, some couples that were common law married in Texas and want to get divorced do nothing and after two years the legal presumption is that the man and woman never entered into an agreement to be married. But remember, if significant interests (kids, money, property, etc.) or unique circumstances (one person wants to remarry quickly) exist, it's generally best to get a formal divorce.