Jamie Graham & Associates, PLLC

Does common law marriage include same-sex couples in Texas?

Common law marriage is uncommon across the U.S., and Texas is one of only a handful of states that still allows for common law or "informal" marriages in some circumstances.

In the aftermath of Obergefell, however, same-sex couples living in common-law states may wonder what this means for their relationships. Learning that you and a partner are (or were) married in the eyes of the law could have far-reaching consequences for everything from child custody to inheritance.

First, here are the three main requirements for a common law marriage to be recognized under Texas law:

  • You must agree to be married.
  • You must live together as a married couple.
  • You must tell others you are married.

In addition, you must be at least 18 years old. Note that there are no time requirements - you do not have to have lived together for any particular length of time.

Although the letter of Texas's informal marriage law refers to "the marriage of a man and woman," does the federal legalization of same-sex marriage extend the informal marriage law to all couples? A landmark ruling last year suggests that it does.

Last October, a county probate judge ruled that an eight-year relationship between two women could be considered a marriage under law, even though they never received a marriage license, since they had lived and presented themselves as married. The couple had celebrated a marriage ceremony in 2008 that wasn't recognized under Texas law at the time, according to the Austin American-Statesman.

Marriage law is still developing across Texas and across the country, so it's a good idea to consult an attorney if you're unsure of the status of your own relationship under state or federal law.

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