Accidentally Married? Understanding Common Law Marriage in Texas
The idea of being accidentally married in Texas sounds like something out of a romantic comedy—or a nightmare, depending on your perspective.
But can you really wake up one day to discover you’re in a legally binding marriage you didn’t mean to enter? The answer: It’s harder than you think, but not impossible if you meet the legal requirements.
What Is a Common Law Marriage in Texas?
Under Texas Family Code § 2.401(a)(2), a common law marriage—also called an informal marriage—exists if:
Both parties agree they are presently married (not planning to marry in the future).
They live together in Texas as husband and wife.
They represent to others that they are married.
All three elements must be present. Miss one, and there’s no common law marriage.
When Courts Find There’s No Common Law Marriage
In re Estate of Summers
A Houston appellate court found no informal marriage even though the couple lived together and sometimes introduced themselves as married. Why? Evidence showed they planned to go to Las Vegas for a future ceremonial wedding with an Elvis impersonator. Because they had no present agreement to be married, the legal elements were not met.
Declarations of Informal Marriage—Helpful, But Not Absolute
Couples can sign a Declaration and Registration of Informal Marriage under Texas Family Code § 2.402, stating:
They are not related,
They agreed to be married on a specific date,
They have lived together since that date, and
They have represented to others that they are married.
The declaration is strong evidence—but it can be rebutted by proof that the elements of common law marriage weren’t truly met.
Case in Point: Colburn v. State
In this case, the couple’s declaration claimed they’d been married since August 4, 1988, but the court found there was no present agreement to be married until they actually signed the declaration in January 1990. The August date was simply the day they agreed to marry in the future.
As the court put it:
“Common law marriage requires that there be some agreement presently to be married, not to marry sometime in the future.”
Bottom Line: Love Can Be Accidental—Marriage Usually Isn’t
While you might fall in love by accident, in Texas, you can’t be accidentally married unless you and your partner:
Agree you are married right now,
Live together as spouses, and
Hold yourselves out as married.
If you think you might be in a common law marriage in Texas—or want to be sure you’re not—consult with a McMullen Law Group before making assumptions.
