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 Important Cases in Texas Common Law Marriage
(Informal Marriage)

In order to determine if a common law marriage exists, it is helpful to review the important cases that have been decided in Texas concerning this matter. 

The Supreme Court has provided an overview of this state’s position regarding common law marriages in Russell v. Russell, 865 S.W. 2d 929 (Tex. 1993). The Supreme Court explained that common law marriages have been recognized in Texas since the case of Tarpley v. Toade’s Adm’r, 2 Tex. 139, 149 (1847).Id. The opinion further explained that since 1847, Texas has rejected the necessity of ritual formality to establish the marriage relationship. 

Although Texas has recognized the validity of common law marriages, this recognition has been described as “grudging”. 

Russell 265 S.W. 2d at 930; citing 28 Hous. L. Rev. 1131, 1150 (1991).
Pressure to abolish common law marriage has been successfully thwarted by a majority in the Texas legislature, in spite of its decline in popularity in other states. 

For example, in 1970, the Texas legislature refused to abolish common law marriages when it enacted Title 1 of the Texas Family Code. Instead, the legislature added a provision allowing a couple to file a declaration of informal marriage with the County Clerk. In 1999, another attempt to invalidate common law marriages was made in a house bill which, if passed, would have repealed §2.401, 2.402, 2.403, 2.404, and 2.405 of the Family code. If the bill had taken effect, persons in Texas no longer would have been able to enter into an informal marriage. The bill never received a vote and was left pending in committee. 

A number of Texas residents enter into common law marriages for various reasons including the convenience perceived to be associated with such a decision as opposed to the ceremonial marriage, the avoidance of the expenses associated with ceremonial marriage, and the desire for privacy. In Russell, the Texas Supreme Court asserted that, before the enactment of the 1989, the Texas Family Code allowed courts to infer or imply a couple’s marriage agreement from evidence which established cohabitation and public representation alone. 

Currently, under §2.401, the Code provides a period of time as follows:

(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 that the parties did not enter into an agreement to be married §2.401 Tex. Fam. Code §2.401(b).

Thus, this subsection provides an evidentiary presumption of no marriage if no suit for divorce claiming an informal marriage is filed within two years of the parties’ separation. 

 



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