But Aren’t We Already Married?

The recent U.S. Supreme Court decision on same sex marriage has generated a great deal of discussion about the subject. Questions have been asked such as: “What constitutes a marriage?”, “What makes a marriage legal?”, and “I thought we were already married?”

Some people are convinced they are married because they’ve been living together for many years or because they have children together. This is what is thought to be a “common law marriage.” A common law marriage is where the couple are deemed to be legally married without obtaining a marriage license and without having a marriage ceremony. Children together and a set amount of time together don’t make a couple married in Texas. In order to have common law marriage in our state, the couple must meet these three requirements:

  • Agree to be married,
  • Live together in Texas as husband and wife (holding out that you are married), and
  • Tell other people that they are married

When a couple has met these requirements, a common law marriage has the same legal effect as a ceremonial marriage.

Agreeing to be married is pretty straight-forward. Living as a married couple is a bit more complex: this is more than being roommates. The two people need to be acting as a couple. For example, signing a lease or a credit card application as a married couple. Finally, telling others that you’re married is as easy as a post on Facebook or a call to your mom with the news. In Texas, you only have to do this once to meet the third requirement.

If a couple wants to formalize a common law marriage, they can complete and file a Declaration of Marriage at the County Clerk’s office in the County where they reside.

These same requirements now apply to same-sex couples as well. The United States Supreme Court has ruled that marriage is a right for everyone, regardless of sexual orientation. The question that remains here in Texas is, “What is the date of our common law marriage?” and “Is it when we performed our marriage ceremony years ago or the date the decision came out?” This is an open question until trial courts begin to decide on this issue.

If you have questions about common law marriage, the recent Supreme Court decision, or Pre-Marital or Post-Marital Agreements, please contact the Hailey-Petty Law Firm in Austin at (512) 910-8977 or email pam@haileypettylaw.com.

Your future is our business.