Commonlaw Marriage in Texas

Factual Questions
1

Well, I couldn’t find this on the Texas Legislature website, so I tun to you guys. What is required for a commonlaw marriage in Texas?

Now, Carl says that he heard once that you just have to stay together in the same house for a week, and be having sex. Seems to easy to me, and it sure would make our engagement seem silly if we are already “married.”

I couldn’t find anything in Cecil’s archives, but I did see this in an old thread. I’m not sure if I trust it, though, since it was just a tangent:

Anybody know if it’s valid? I’m really interested.

Cessandra

I would’ve gotten away with it, too, if it weren’t for those meddling kids!

2

From the Texas family Code chapter two (http://capitol.tlc.state.tx.us/statutes/codes/FA000003.html):

SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES

        Sec. 2.401. Proof of Informal Marriage.

(a) In a judicial, administrative, or other proceeding, the

marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided

                 by this subchapter; or

(2) the man and woman agreed to be married and after the

agreement they lived together in this state as husband and wife

and there represented to others that they were married.

(b) If a proceeding in which a marriage is to be proved as

provided by Subsection (a)(2) is not commenced before the second

anniversary of the date on which the parties separated and ceased

living together, it is rebuttably presumed that the parties did

       not enter into an agreement to be married.

      (c) A person under 18 years of age may not:

       (1) be a party to an informal marriage; or

(2) execute a declaration of informal marriage under Section

                         2.402.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

  1. Amended by Acts 1997, 75th Leg., ch. 1362, Sec. 1, eff.

Sept. 1, 1997.

Sec. 2.402. Declaration and Registration of Informal Marriage.

     (a) A declaration of informal marriage must be signed on a form

prescribed by the bureau of vital statistics and provided by the

county clerk. Each party to the declaration shall provide the

information required in the form.

     (b) The declaration form must contain:

                   (1) a heading entitled "Declaration and Registration of

     Informal Marriage, ___________ County, Texas";

                   (2) spaces for each party's full name, including the woman's

     maiden surname, address, date of birth, place of birth,

     including city, county, and state, and social security number,

     if any;

                   (3) a space for indicating the type of document tendered by

     each party as proof of age and identity;

                   (4) printed boxes for each party to check "true" or "false"

     in response to the following statement: "The other party is

     not related to me as:

                  (A) an ancestor or descendant, by blood or adoption;

                  (B) a brother or sister, of the whole or half blood or

     by adoption;

                  (C) a parent's brother or sister, of the whole or half

     blood or by adoption; or

                  (D) a son or daughter of a brother or sister, of the

     whole or half blood or by adoption.";

                   (5) a printed declaration and oath reading: "I SOLEMNLY

     SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH

     OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE

     AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS

     HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS

     THAT WE WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER

     PARTY I HAVE NOT BEEN MARRIED TO ANY OTHER PERSON. THIS

     DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE

     GIVEN IS CORRECT.";

                   (6) spaces immediately below the printed declaration and

     oath for the parties' signatures; and

                   (7) a certificate of the county clerk that the parties made

     the declaration and oath and the place and date it was made.

     (c) Repealed by Acts 1997, 75th Leg., ch. 1362, Sec. 4, eff.

Sept. 1, 1997.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

  1. Amended by Acts 1997, 75th Leg., ch. 1362, Sec. 4, eff.

Sept. 1, 1997.

Sec. 2.403. Proof of Identity and Age.

     The county clerk shall require proof of the identity and age of

each party to the declaration of informal marriage to be

established by a certified copy of the party’s birth certificate

or by some certificate, license, or document issued by this state

or another state, the United States, or a foreign government.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

Sec. 2.404. Recording of Declaration of Informal Marriage.

     (a) The county clerk shall:

                   (1) determine that all necessary information is recorded on

     the declaration of informal marriage form and that all

     necessary documents are submitted to the clerk;

                   (2) administer the oath to each party to the declaration;

                   (3) have each party sign the declaration in the clerk's

     presence; and

                   (4) execute the clerk's certificate to the declaration.

     (b) The county clerk may not certify or record the declaration

if:

                   (1) either party fails to supply any information or provide

     any document required by this subchapter;

                   (2) either party is under 18 years of age; or

                   (3) either party checks "false" in response to the statement

     of relationship to the other party.

     (c) On execution of the declaration, the county clerk shall

record the declaration and all documents submitted with the

declaration or note a summary of them on the declaration form,

deliver the original of the declaration to the parties, and send

a copy to the bureau of vital statistics.

     (d) A declaration recorded as provided in this section is prima

facie evidence of the marriage of the parties.

     (e) At the time the parties sign the declaration, the clerk

shall distribute to each party printed materials about acquired

immune deficiency syndrome (AIDS) and human immunodeficiency

virus (HIV). The clerk shall note on the declaration that the

distribution was made. The materials shall be prepared and

provided to the clerk by the Texas Department of Health and shall

be designed to inform the parties about:

                   (1) the incidence and mode of transmission of AIDS and HIV;

                   (2) the local availability of medical procedures, including

     voluntary testing, designed to show or help show whether a

     person has AIDS or HIV infection, antibodies to HIV, or

     infection with any other probable causative agent of AIDS; and

                   (3) available and appropriate counseling services regarding

     AIDS and HIV infection.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

  1. Amended by Acts 1997, 75th Leg., ch. 1362, Sec. 2, eff.

Sept. 1, 1997.

3

And that mean???

4

My Dad used to tell me that if you sign in as Mr. & Mrs. in a motel register, that makes it a public declaration.
Even if you signed in as “Mr. and Mrs. John Doe” you still made a public representation of yourselve as married.
This was back in the mid '60’s.
The laws above are from 1997
And I suspect Dad was trying to keep me from taking a date to a motel.

5

Sounds like you can marry your first cousin in Texas. Woo Hoo!!!

6

You got a problem with that, partner?

7

Who’s Carl?

8

For all that trouble, go to the country clerks office, give 'em some money and get a marriage license. Then make an appointment with the Justice of the Peace and 10 minutes later, you’re legally married. Easier then figuring all that crap out.

Zette

Love is like popsicles…you get too much you get too high.

Not enough and you’re gonna die…
Click here for some GOOD news for a change Zettecity

9

Wow, this is the third time in three weeks I’m writing about common-law marriages. (FYI, this issue came up in the Universal Life Church thread, http://www.straightdope.com/ubb/Forum3/HTML/005439.html and the now closed portion of the same-sex marriage thread, http://www.straightdope.com/ubb/Forum1/HTML/000462.html ).

Although each state now has its own regarding how marriges must be completed, they all come from the legal tradition we inherited from England. In England there were two ways that a couple could historically get marriedeither in a religious ceremony or under the common law. Religious marriages are what we think of today, going to a priest/minister and having him join the couple in marriage in accordance with religious tradition.

However, religious marriages were not required. Under English common law, if a man and woman lived together as husband and wife, holding themselves out to the public as such, then they would be considered to be such under the law, despite the fact that their marriage had not been solemnized in any ceremony or before any religious or civil official. (My theory on common-law marriages is they were just a recognition of the reality from the era before extensive record-keeping and formalities that if two people were living and acting as husband and wife, the law would consider them as such).

In the United States, most states have prohibited the common-law marriage (i.e. a marriage entered into without any ceremony before an authorized official), though Texas and a few others permit them. The Texas statute cited by Otto is the law that permits them. (By the way, the full chapter of law at the link, http://capitol.tlc.state.tx.us/statutes/codes/FA000003.html , lists all of the requirements for formal as well as common-law marriages).

Under the law there are two ways to enter into a common-law marriage. The first is for the couple to go down to the County Clerk’s office and sign a document stating they are married. Boom. That’s it. It’s done. They’re married. No need for a minister, band, hall, etc. (The document, by the way, not surprisingly has about the same information as an ordinary marriage licence for a ceremonial marriage).

The other way is when “the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.” These are the traditional requirements for common-law marriage. Note that for a valid common-law marriage to occur all three requirements must be met:

(1) The parties agreed to be married;
(2) the parties lived together as husband and wife; and
(3) the parties represented to others that they were husband and wife.

In Doug’s example, just signing the register of a motel Mr. & Mrs. Doe wouldn’t qualify because, although signing a motel register might be considered a representation to others that they were married, they didn’t agree to be married and they didn’t live together as married.

An interesting wrinkle in the Texas law is that if the parties to what might be a common-law marriage (without signing the paper) break up and neither party makes an issue of it (i.e. sues for divorce, alimony, etc.), the relationship is presumed not to have been a marriage.

An example of when a party would try to prove a common-law marriage is the widely publicized case from some years when the ex-girlfriend of actor William Hurt sued him for alimony, claiming they became common-law husband and wife during that during the time they lived together in North Carolina, a state that recognizes common-law marriages. The courts rejected her claims.

Anyway, Cessandra, you said:

Carl has an over-simplified view of the law. Although if a couple decided to be married, lived together and represented themselves as married (and there is no one week requirement and sex doesn’t enter into it), they would be married.

However, even if you and Carl were living together, you wouldn’t be married. You say that you are engaged. That indicates that you have agreed to be married at some later time and not to be married now, so you haven’t met the first requirement of the law. Also, I assume that when you go around you don’t introduce Carl as your “husband”, but rather as your “fiance”, so you haven’t met the third requirement. So, even if you are living together, you aren’t considered married.

So don’t worry, keep planning that big church wedding, or small wedding before the justice of the peace, or the just run down to the County Clerk’s office and sign the papers wedding. You’ll only be married if you agree to be married, live together, and announce it to the world. (By the way, if you agree to be married and don’t want to go through the formalities, I’d strongly recommend that you run down to the County Clerk and fill out the paperwork, because if you don’t, not having a document saying you’re married can be a pain in the butt for a whole host of reasons.)

10

Sorry, Zette, actually that wouldn’t work. Under the Texas law cited (but in the part that wasn’t quoted by Otto) there is a requirement for a 72-hour waiting period between when the couple gets the marriage license and when the marriage is solemnized. It’d be much easier to go down to the clerk’s office and fill out the “we wanna be married now” form.

11

Forget Nickrz, probably too old for you. Tell ME who this Carl guy is. :wink:

Actually I’m too far from Texas to ask rudely or politely who Carl is but I do have several good buddies in Houston if he steps out of line.

Oh, I’m gonna keep using these #%@&* codes 'til I get 'em right.

12

I got a cousin named Carl, and he rarely follows any law,common or uncommon, if it IS him, don’t beleave a thing he says,Cessy, specially that part about not bein married already, he’s got a wife in Waco and two in Abeline. And,Coop, first cousins can be married in any state in the union.

“Pardon me while I have a strange interlude.”-Marx

13

Carl is (obviously) my fiancé. I thought everybody knew I was engaged. Guess that’s what I get for assuming. . .

Anyway, I was just curious. We’re not living together; we only stayed together for a week or two over Xmas vacation. And, Zette, no Justice of the Peace marriage for me! I’m getting hitched at Ren Fest!

Cessandra

I would’ve gotten away with it, too, if it weren’t for those meddling kids!

14

Billdo, is the 72 hour waiting period a new addition to the law? When my husband and I were married, in San Angelo, Tom Green County, Texas, in 1987, we did precisely what Zette said, we went to the county clerks office, got the license, went to the Justice of the Peace, got married, went back to the clerks office, filed the license, and that was it. Took about an hour total. Good thing too, considering I started having contractions that night. :wink:

15

There were actually three ways under English law (up until about 1750-1800 when Parliament started tightening up the requirements). Two of them involved clergy (in one banns were published, in the other banns were not required). A common-law marriage required just a little more than presenting as husband and wife. Specifically, the couple had to exchange vows and had to consumate the marriage.

16

Apparently, in Iowa, if you say you’re married, you’re married, at least for some purposes.

Our company lawyers told us we could use that as a “standard” when employees ask to have girlfriends, boyfriends, etc. added to their group insurance plans.

If the employee describes the person as spouse, husband, or wife, they are an eligible dependent and we can insure them. If they describe the person as girlfriend, boyfriend, fiance, SO, etc., we can’t.

If they say they’re going to get married, then we don’t insure them, cuz they obviously don’t consider themselves already married.

Sometimes guys will come in to add new babies to their insurance, and ask about adding the mother, describing the mother as their “girlfriend.” Okay for the baby, but not the mom.

I’ll ask the guy (I’m old and mouthy) why they don’t just get married, and they’ll look shocked, or laugh and say “no way.”

So she’s okay to be the mother of your child, but she’s not acceptable as your wife? But that’s a whole other subject.

Kids today. (Shaking my head.)

17

I grew up in San Angelo, Texas. Small world. :slight_smile:

18

It’s a nice town, Johnny. I really enjoyed it there.

19

Actually, that’s not true. Several states still prohibit marriage between first cousins. I’m at home without access to my research materials, so I can’t tell you all of them, but I know that, for example, in Missouri you cannot marry your first cousin.

-Melin

Siamese attack puppet – California

Still neglecting and overprotecting my children

20

I’m not sure. The section imposing the waiting period, from the Texas state website cited above is:

The text says that it was added by chapter 7, section 1 of the Texas Acts of 1997, effective April 17, 1997, so in its current form is a fairly recent enactment. However, all of the sections of the marrige law cited on the website have this same legend, so the whole marriage law was enacted in 1997. However, Texas obviously had marriage laws before that.

It sees likely to me that in 1997 the Texas legislature recodified the marriage laws. Most of the time when laws are recodified the legislature changes some things but leaves others alone. I have no idea what the pre-1997 law was, so I cannot answer the question.

Anyway, if the Justice of the Peace married you and the County Clerk accepted the papers, you’re married, and if they screwed up, it’s their problem.