What is the common law for Texas?

Common Law in Texas: An Overview

Common law in Texas primarily refers to two concepts: the general legal tradition inherited from English law and, more specifically in popular usage, the concept of common law marriage. Below, both aspects are explained, with a focus on the legal framework and implications for Texas residents.

Common Law Tradition in Texas

Texas, like most U.S. states, generally follows the common law legal tradition, which means that its laws are based on judicial precedents and customs inherited from English law, except where modified by statutes or the Texas Constitution. However, Texas also has unique historical influences from Spanish civil law, particularly in property and family law.

Common Law Marriage in Texas

Common law marriage (also called informal marriage or marriage without formalities) is a legally recognized marriage in Texas that does not require a formal ceremony or marriage license. Couples who meet specific legal requirements are considered married and enjoy the same rights and responsibilities as couples who have a ceremonial marriage.

Legal Requirements

To establish a common law marriage in Texas, the following criteria must be met:

• Agreement to be married: Both parties must mutually agree to be married.

• Cohabitation: The couple must live together in Texas as spouses.

• Representation: The couple must represent to others that they are married (often called “holding out” as married).

Both parties must be at least 18 years old, not married to someone else, and not closely related by blood. Common law marriage is available to both opposite-sex and same-sex couples.

Establishing the Marriage

A couple can formalize their common law marriage by filing a “Declaration of Informal Marriage” with the county clerk, but this is not required. Alternatively, they can simply meet the three criteria above, and their marriage will be recognized by law.

Legal Rights and Responsibilities

Once established, a common law marriage in Texas is legally equivalent to a ceremonial marriage. This means:

• Property Rights: Texas is a community property state, so property acquired during the marriage is jointly owned.

• Spousal Support: Common law spouses may be eligible for spousal support or alimony.

• Inheritance: Common law spouses have inheritance rights if one partner dies without a will.

• Divorce: Dissolution of a common law marriage requires a formal divorce process, just like a ceremonial marriage.

Proving a Common Law Marriage

Proving a common law marriage may require evidence such as joint financial accounts, shared living arrangements, or affidavits from witnesses. This is particularly important in legal disputes over property, divorce, or inheritance.

Time Limits

If a couple separates and does not initiate legal proceedings to prove the marriage within two years, Texas law presumes that no common law marriage existed, though this presumption can be challenged with sufficient evidence.

Historical Context and Evolution of Common Law Marriage in Texas

Origins and Necessity

Common law marriage in Texas has deep historical roots, emerging as a practical solution during the state’s early settlement period. In the 19th century, the scarcity of clerics and civil officials made formal marriage ceremonies inaccessible for many settlers. As a result, Texas recognized informal unions to ensure that couples could still access the legal protections and responsibilities of marriage even without a formal ceremony.

Legal Development and Statutory Changes

Over time, Texas began to regulate ceremonial marriages more strictly, introducing licensing requirements, health examinations, and mandatory record-keeping. Despite these formalities, the state continued to recognize common law marriages, reflecting both the practical needs of its rural population and the influence of Spanish civil law, which historically provided married women with more property rights than English common law.

Impact on Women’s Legal Status

Marriage, including common law marriage, significantly influenced the legal status of women in Texas. Before women gained equal rights, marriage determined their property and contractual rights. Texas law, influenced by Spanish tradition, allowed married women to own separate property and share equally in community property, a progressive stance compared to English common law. The Marital Property Act of 1967 and subsequent adoption of the Texas Family Code further advanced women’s rights, granting married women equal legal standing in property, contracts, and other aspects of family law.

Summary Table: Common Law Marriage in Texas

Conclusion

Texas recognizes both the broader common law tradition and the specific institution of common law marriage. Common law marriage in Texas grants couples the same legal rights and responsibilities as formal marriages, provided they meet the legal criteria and can prove their relationship if necessary.