In the state of Texas, informal marriage (commonly referred to as “common-law marriage”) is not a romantic myth or a loophole. It is a fully enforceable legal status that carries with it all the rights and responsibilities of a ceremonial marriage. Yet, in practice, some parties—and at times, even their counsel—attempt to avoid the consequences of such a union by engaging in denial tactics.
“All you have to do is agree you were never married.” That’s not strategy. That’s misdirection.
This article will outline what qualifies as a valid common-law marriage in Texas, what the law says, and how denial is not a defense.
The Law: Texas Family Code § 2.401
Under Texas law, a marriage exists without a license or ceremony if all three of the following elements are met:
- Agreement to be married
- Cohabitation in Texas as spouses
- Representation to others that the couple is married
These are not guidelines. These are statutory elements. If proven, the law recognizes the marriage with the same force as a formal union.
Read more from the Texas Family Code
Real-World Examples of Common-Law Marriage in Texas
Example 1: A couple discusses future marriage and plans a specific wedding location, such as the Cave With No Name near Boerne, Texas. While the ceremony never takes place, the expressed intent, destination, and planning details reflect an agreement to be married.
Result: Strong support for the first element of informal marriage under Texas law: agreement to be married.
Example 2: A couple lives together for five years, files joint tax returns, celebrates anniversaries, and introduces each other as spouses. They are commonly referred to as “husband and wife” in their social circle.
Result: Very likely a valid informal marriage under Texas law.
Example 3: A couple cohabits but maintains separate finances, files taxes individually, and avoids calling each other spouses.
Result: Likely not a common-law marriage due to failure to meet the “holding out” requirement.
Example 4: A couple has a shared lease, wears rings, and refers to each other as spouses on social media, but one party later denies the marriage in court.
Result: Becomes a fact issue—possibly decided by a jury.
The Denial Strategy: A Flawed Playbook
In practice, one party often attempts to avoid the consequences of an informal marriage by denying the relationship ever existed in legal form. This may be done verbally or encouraged by legal counsel.
In one notable case, a party representing Vanessa Mary Buchanan of Buchanan Insurance, and affiliated with Fanny Martin Poteet at Modern Family Law suggested that a common-law marriage could be dismissed entirely simply by both parties “agreeing” it never existed. However, the existence of a marriage is not contingent upon after-the-fact agreement. It is determined by whether the elements were met.
This tactic not only misrepresents the law, but it also risks a significant ethical and legal misstep.
Why Denial Can Backfire
Denying the existence of a valid informal marriage can have serious consequences:
- Inconsistent testimony can undermine credibility
- Attempting to hide community property may trigger sanctions
- Perjury or bad-faith tactics can result in adverse findings
- Judicial skepticism may taint the case’s overall reception
In some cases, denial isn’t just dishonest—it can become an obstruction to justice.
Proof in Court
The burden to prove a common-law marriage falls on the party asserting it. This can include:
- Joint tax returns listing each other as spouses
- Lease agreements or shared utilities
- Social media posts, emails, or public declarations
- Family or friend testimony confirming that the couple referred to each other as married
- Insurance policies or employment documents listing the other as “spouse” or “dependent”
Even if the parties filed taxes separately, if one party receives imputed income due to the other being covered on their employer-sponsored healthcare plan, and the insurance carrier designates that partner as a “dependent”, this supports the existence of a domestic and marital relationship under Texas law.
Another strong form of evidence comes from text messages or written communication. For example, if one party weaponizes the word “husband” in text messages—berating their partner for not living up to “husband material”—that can demonstrate an expectation and acknowledgment of a spousal relationship.
Once contested, the issue becomes a fact question, and the court may send it to a jury for determination.
Another strong form of evidence comes from text messages or written communication. For example, if one party weaponizes the word “husband” in text messages—berating their partner for not living up to “husband material”—that can demonstrate an expectation and acknowledgment of a spousal relationship.
The burden to prove a common-law marriage falls on the party asserting it. This can include:
- Joint tax returns listing each other as spouses
- Lease agreements or shared utilities
- Social media posts, emails, or public declarations
- Family or friend testimony confirming that the couple referred to each other as married
- Insurance policies or employment documents listing the other as “spouse”
Once contested, the issue becomes a fact question, and the court may send it to a jury for determination.
Related Case Law
- Russell v. Russell, 865 S.W.2d 929 (Tex. 1993): The Texas Supreme Court confirmed that a preponderance of the evidence must prove common-law marriages.
- Eris v. Phares, 39 S.W.3d 708 (Tex. App.—Houston [1st Dist.] 2001): Establishes that the informal marriage doctrine can apply even where one party later disputes it.
These cases affirm that courts take informal marriage claims seriously, and denial alone is not enough to defeat them.
Frequently Asked Questions
Do I need a lawyer to prove a common-law marriage? No, but legal counsel can help you present stronger documentary evidence and navigate court proceedings effectively.
What if we never filed taxes together? That alone doesn’t disqualify your claim, but it may weaken your proof. Other forms of evidence can still be persuasive.
Can I still file for divorce if it was a common-law marriage? Yes. If the court determines a marriage existed, you can pursue a standard divorce proceeding under Texas law.
If we break up, are we automatically divorced? No. You must file for divorce if the marriage was valid, or file a declaratory action to dispute it.
Does the statute of limitations apply? Yes. Under § 2.401(b), if no divorce is filed within two years after separation, there is a rebuttable presumption that no marriage existed.
Why It Matters
Establishing an informal marriage isn’t about scoring points. It’s about:
- Equitable division of property
- Protecting rights to spousal support
- Ensuring honesty in legal proceedings
- Preventing manipulation through denial
When an attorney or party attempts to bypass these principles by simply suggesting that a marriage never occurred, despite clear evidence, they are not engaging in advocacy. They are undermining the law.
Conclusion
You don’t become unmarried just because it’s convenient. In Texas, common-law marriage is real, enforceable, and consequential. If you’re facing denial tactics in your case, you deserve clarity, and the law is on your side.
Remember:
This isn’t about how you feel. It’s about what you’ve lived.
