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Answers to questions about common law marriage requirements

Since the 2015 Obergefell decision in the U.S. Supreme Court, same-sex couples in Texas have all the same rights pertaining to marriage and divorce that apply to heterosexual couples. At Laura Dale & Associates, we know that this can cause confusion as it relates to the beginning of a common law marriage as well as the possible end. In this article, we endeavor to answer the questions you may have to clear up any confusion. 

According to FindLaw, common law marriage is valid and legal in Texas despite the lack of a marriage license and other formalities. However, it does not happen automatically once you have lived with a partner for a certain period of time. There are three specific requirements that you and your intended spouse must meet to achieve recognition of your common law marriage:

  • Agreement to the marriage
  • Representation of yourselves as a married couple to others
  • Living together as a married couple after the initial agreement took place

The court will ask you to provide evidence that you have met the requirements. 

If you move out of Texas, other states may not recognize your common law marriage. That has nothing to do with you being a same-sex couple, however. Rather, it has to do with laws of other jurisdictions regarding common law marriage. Different rules may apply in different states, but all rules must apply equally to same-sex couples and heterosexual couples. 

Just as a common law marriage does not automatically begin when you have lived together for a certain amount of time, it does not automatically end without a divorce proceeding. Though the marriage may be informal, the divorce must take place through formal channels.

However, if you cannot prove that a valid common law marriage ever took place, you are not eligible to divorce and can end the relationship according to your discretion. More information about same-sex divorce in the context of common law marriage is available on our website.