A common-law marriage in Texas, which the Family Code calls an informal marriage, is legally identical to a marriage created by a license and ceremony. If a couple agrees they are married, lives together in Texas as spouses, and tells other people they are married, the law treats them as married for every purpose: community property, inheritance, spousal benefits, and divorce. The relationship starts without paperwork, but once it exists, ending it takes a court.
The Three Elements That Make It Valid
Texas Family Code § 2.401(a)(2) requires three things, and all three must exist at the same time.1State of Texas. Texas Family Code FAM 2.401 – Proof of Informal Marriage
- A present agreement to be married. Both people have to intend they are married right now, not someday. Being engaged or planning a wedding does not count.
- Living together in Texas as spouses after that agreement. The statute sets no minimum length of time, but the cohabitation has to overlap with the agreement and the holding out.
- Representing to other people that you are married. This is called holding out, and it has to be mutual and public.
Holding out looks like introducing each other as husband or wife, filing joint federal tax returns, signing a lease or loan application as a married couple, sharing a last name, adding a partner to health insurance, or naming a partner as a spouse on benefit forms.2Texas Law Help. Common Law Marriage If one partner secretly disagreed, or the couple lived together quietly without ever telling anyone they were married, the test is not met.
Who Cannot Form One
The same statute closes the door on certain relationships regardless of intent or how long the couple has been together.
- Anyone under 18 is barred. Unlike ceremonial marriage, there is no court workaround and no parental consent exception for an informal marriage.1State of Texas. Texas Family Code FAM 2.401 – Proof of Informal Marriage
- A person already married to someone else cannot form a new informal marriage. Under Texas Family Code § 6.202, a marriage entered while a prior marriage still exists is void.3State of Texas. Texas Family Code FAM 6.202 – Marriage During Existence of Prior Marriage
- Close relatives cannot form one. The declaration form itself requires each party to confirm they are not ancestors, descendants, siblings, aunts, uncles, nieces, nephews, or current or former stepchildren or stepparents of the other.4State of Texas. Texas Family Code FAM 2.402 – Declaration and Registration of Informal Marriage
The Two-Year Clock After a Breakup
This is where most informal marriages come apart in court. Under Texas Family Code § 2.401(b), if nobody files a legal proceeding to prove the marriage within two years of the date the couple stopped living together, the court presumes there was never any agreement to be married.1State of Texas. Texas Family Code FAM 2.401 – Proof of Informal Marriage
The presumption is rebuttable, but the burden shifts hard against the person claiming the marriage. You need clear proof of the agreement, the cohabitation, and the public holding out, and by then witnesses have scattered and documents are harder to find. Without that proof, the court treats the relationship as unmarried cohabitation. No community property split. No spousal maintenance. If you think you were informally married and the relationship ends, either file for divorce or bring a proceeding to establish the marriage within those two years.
Filing a Declaration to Make the Record Clear
You do not have to file anything for an informal marriage to be legal. But filing a Declaration of Informal Marriage under Texas Family Code § 2.402 creates a permanent public record that functions like a marriage license when you later need to prove the relationship to an agency, an employer, or a court.4State of Texas. Texas Family Code FAM 2.402 – Declaration and Registration of Informal Marriage
Both parties appear together in person before the county clerk with valid identification such as a driver license, state ID, military ID, or passport.5Justia Law. Texas Family Code Chapter 2 – The Marriage Relationship The clerk administers an oath in which both of you swear to the date you agreed to be married, that you lived together as spouses after that date, and that you represented to others that you were married. A filing fee applies, and the amount varies by county.
The date you swear to matters more than most people realize. It fixes the start of the community property period, which is the moment assets and debts acquired by either spouse begin belonging to both.
What Being Informally Married Actually Means
Community Property
Texas is a community property state. Under Texas Family Code § 3.002, property acquired by either spouse during the marriage belongs to both, unless it qualifies as separate property such as a gift, an inheritance, or something owned before the marriage.6State of Texas. Texas Family Code FAM 3.002 – Community Property That rule applies to informal marriages with the same force as to ceremonial ones.2Texas Law Help. Common Law Marriage If the couple disagrees on when the marriage started, courts look at evidence like joint bank accounts, documents signed as a couple, and when a shared last name first appeared. Shifting the start date by months can move significant assets between separate and community columns.
Inheritance
A surviving informal spouse inherits exactly as a ceremonial spouse would. If your partner dies without a will, proving the informal marriage is often the difference between inheriting as a spouse and receiving nothing.2Texas Law Help. Common Law Marriage
Children and Paternity
When a child is born during an informal marriage, the husband is presumed to be the father under Texas Family Code § 160.204. The presumption also covers a child born within 300 days after the marriage ends by death, annulment, or divorce.7State of Texas. Texas Family Code FAM 160.204 – Presumption of Paternity That means the full package of parental rights and obligations, including custody, visitation, and child support, attaches from birth.
Ending an Informal Marriage Takes a Divorce
Moving out does not end the marriage. Splitting your finances does not end it. Telling people you are no longer together does not end it. Because an informal marriage has the same legal weight as a ceremonial one, the only way to dissolve it is a court-granted divorce. Until that happens, the marriage continues, and both spouses keep accumulating community property and the obligations that go with it.2Texas Law Help. Common Law Marriage
The divorce itself proceeds the same way as any other Texas divorce: the court divides community property, may order spousal maintenance, and resolves custody and support for the children. The one added step applies when no declaration was filed and the other spouse denies there was ever a marriage. In that situation, you first prove the three elements, and only then does the divorce move forward.
Taxes and Social Security
Federal agencies generally honor a valid Texas informal marriage. The IRS lets informally married couples file jointly, using Married Filing Jointly or Married Filing Separately, provided the common-law marriage is valid under the law of the state where it began.8Internal Revenue Service. Filing Status
The Social Security Administration recognizes common-law marriages for spousal and survivor benefits but asks for specific evidence. If both spouses are alive, each gives a personal statement and provides a statement from a blood relative of each spouse. If one spouse has died, the survivor needs statements from two blood relatives of the deceased. The SSA also looks at supporting documents like mortgage records, bank records, and insurance policies that show the couple functioned as a married unit.9Social Security Administration. Handbook 1717 – Evidence of Common-Law Marriage A filed declaration makes every one of these applications shorter and simpler; without one, you rebuild the case for each agency.