What constitutes common law marriage in Texas, which the law calls informal marriage, is either a declaration you both signed and filed with the county clerk, or an agreement to be married followed by living together in Texas as spouses and telling people you were married (§2.401).
Informal marriage is a real marriage
The word informal describes how the marriage began, not how much it counts. Once it exists, the law treats it as a marriage: it ends only by divorce, and community property rules apply. Moving out doesn’t end it. Only a divorce case in a Texas court does, and there is no lighter exit for a marriage that began without paperwork.
The declaration route
The simplest proof is a Declaration and Registration of Informal Marriage. Both of you sign it on the form the county clerk provides, each of you supplies the details the form asks for, and it is filed with the clerk (§2.402). If you signed one, keep a copy, because the statute treats a signed declaration as proof of the marriage (§2.401(a)).
The three-part test
Without a declaration, you prove an informal marriage with evidence of three things, and you need all three (§2.401(a)):
- You agreed to be married. Not to marry someday, but to be married from that point on.
- After that agreement, you lived together in Texas as spouses.
- In Texas, you represented to others that you were married. Lawyers call this holding out. It means you told people you were married.
This test is what constitutes common law marriage in Texas when there is no declaration. The living together and the holding out have to come after the agreement, and the agreement is the part that gets argued over. Nothing in the statute requires it to be written down, so it is proved by what the two of you said and did: introducing each other as your spouse, a joint tax return, naming each other as spouse on insurance or a lease.
Living together is not enough
Cohabitation on its own doesn’t create a common law marriage in Texas, however long it lasts. There is no minimum number of years. Two people who shared a home for twenty years, never agreed to be married, and never told anyone they had, are not married. Two people who agreed, moved in, and told everyone within a month may be.
The same goes for children, joint accounts, or a house in both names. Each can be evidence. None of them is the marriage.
The two-year rule after a separation
If you separate and stop living together, a clock starts. Unless a case to prove the marriage is started within two years of that date, the law presumes the two of you never agreed to be married (§2.401(b)). The presumption is rebuttable, so you can still try to prove the agreement, but you start the case with an assumption running against you. This applies when you are proving the marriage by the three elements. A filed declaration is not affected by the two-year rule.
This is the rule that catches people. Someone moves out, the years pass, and the claim arrives after the deadline. If the relationship has ended, the separation date is the first thing to check.
Who cannot be in a common law marriage
Two limits apply whatever the facts. Nobody under 18 can be a party to an informal marriage or sign a declaration of one (§2.401(c)). Nobody who is still married to someone else can enter one or sign a declaration either (§2.401(d)).
Why it matters when the relationship ends
A common law marriage doesn’t end when you move out. It ends only through a divorce, with the usual 60-day waiting period from filing, apart from the narrow family-violence exceptions (§6.702). Until a court signs the decree you are still married, and you cannot enter a new informal marriage with someone else while it stands (§2.401(d)).
Community property rules apply as well. In broad terms, what either of you earned during the marriage belongs to the two of you together, and the court divides it in the divorce. That is what the argument is really about when one of you says there was a marriage and the other says there was not. The three elements above, with the two-year rule, decide who is right.
Write down the facts before you file
Start with dates. When did you agree to be married, when did you start living together in Texas, and when did you separate, if you have. Then gather whatever shows the agreement and the holding out: messages, a lease or deed naming you as spouses, insurance forms, tax returns, and the names of people who heard you call each other your spouse. If the separation was close to two years ago, the filing date matters more than anything else on this list, so get advice on that first.
