Proof of Informal Marriage

As an El Paso, Texas, divorce lawyer I have worked with clients who are dealing with what is called an informal marriage. Sometimes an informal marriage is referred to as a common law marriage.    

Let’s look at how one proves the existence of an informal marriage.  Here is the language from the Texas Family Code.  It is found in Section 2.401 (a)(2) of the Code.  

In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by…(a finding that) a man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

Texas Family Code – Section 2.401 (a)(2) 

Look at this language very closely.  It basically requires an agreement, a living together and a holding out that the parties are man and wife.   You might say that the agreement comes first, followed by a living together in Texas and then holding out to others that you are married. 

 This comes up when, let’s say a woman has been with her “husband” for years.  The husband has been earning a pension and suddenly there is a divorce. The woman discovers that the longer she has been married to the “husband” the more of his pension she can collect upon divorce. The husband, in turn, is going to try to prove that his “wife” does not meet the test for an informal marriage. 

Men and women are more commonly living together, buying houses together, opening checking accounts together, sharing credit cards and even filing joint tax returns, all without there ever having been a ceremonial marriage or formal declaration of marriage in writing.  

So, if you are in a relationship and you are concerned about what the legal implications could be in the event you split up, you need to see an experienced family lawyer who has handled many divorces.  By the way, in proving up an informal marriage, you do not need to have a written agreement.  The agreement can be proven by circumstantial evidence. 

 If you have any questions then please call us at 915-593-6600 or 915-256-0579 or email us directly. We are here to help!