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Common Law Marriage and Divorce FAQs

When it comes to common law marriage and divorce, there might be different circumstances that could be associated with individual cases. The following are the most commonly asked questions regarding common law marriage and getting a divorce after a common law marriage. The answers are addressing the questions below are in general form and if there are unique circumstances in your case, these might not apply to you.

What is a common law marriage?

A common law marriage is also referred to as an informal marriage. It is as legal as a ceremonial marriage. A couple may be considered legally married when they agree to be married, lived together as husband and wife and treated each other in public as husband and wife. You can also think of ceremonial marriage as a marriage with a license, while a common law marriage is a legal union without a license. A union can only be considered common law marriage if the couple met all the factual and legal requirements.

Can a couple living together be considered married in a common law marriage?

No, just because a couple lives together does not automatically makes them a common law married couple. There are requirements that need to be met in a Common law marriage in Texas. First, the couple should have an agreement that they are going to get married. Second, they should have presented themselves to the public as a married couple. Third, they should have lived together as a married couple in the state of Texas.

How can I prove that I am in a common law marriage?

The three requirements for a common law marriage must be met. There should be evidence that both parties both agreed to be husband and wife in a present, immediate and permanent marital relationship. If they only agreed to be married some time later, this is not enough evidence to prove that they are married according to common law marriage laws. In case there are no written agreements between the couple, the actions of each can be used as evidence that there was an agreement to be married. As for living together as husband and wife, the couple must provide evidence that they kept a household and did things that a married couple usually do. There is also the requirement about holding out as a married couple. There is no such thing as a secret common law marriage. You should provide evidence that you have shown the world that you are a married couple.

How long should you have lived in Texas together as a married couple before you can meet the requirements?

As for the length of time you need to have lived in Texas, there is no minimum requirement.

Is there a statute of limitations regarding when you can establish a common law marriage?

There is no statute of limitation regarding when you should establish your common-law marriage. All you really need to mind is providing enough evidence of the requirements.

Is there a need for divorce in a common-law marriage just like how there is in ceremonial marriages?

Yes. A common-law marriage is treated just like a ceremonial marriage in the eyes of the law. There are some differences though. A spouse can contest the existence of a common law marriage and in such cases, extra steps would need to be taken to address the issue.

Is there a need for a special process, like a common-law divorce?

Common-law divorce does not exist. If your common law marriage is valid, you will have to go through the same process as those people undergoing a divorce who had a ceremonial marriage.

Is there a minimum requirement for the amount of time to prove a common law marriage after we separate?

There is no mandatory minimum when it comes to proving a common law marriage after separation. However, the Texas Family Code says that after two years of separation, there will be a presumption that no such marriage existed.

Can there be a common law marriage between same-sex couples?

Yes, when same-sex marriage was legalized in every state back in June 26, 2015, common law marriage became available for same-sex couples.

Is common law marriage open for someone younger than 18?

No, someone who is under 18 may not enter into a common law marriage.

Can a person who is already married enter into an informal or common law marriage?

No. If a person is currently married, he or she cannot enter into another marriage such as a common law one.

What is a declaration of informal marriage?

A declaration of informal marriage can be made through an application with the county clerk as an evidence that the couple has entered a common law marriage. You can sign Declaration of Informal Marriage with your spouse.

When will you need to prove a common law marriage?

When it comes to property issues, you might have to prove a common law marriage. If a couple married through common law desire a divorce, they will need to prove the existence of their common law marriage in order to divide their community property properly. If a spouse in a common law marriage dies without a will, the surviving spouse must prove the informal marriage in order to claim the inheritance.


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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at