Texas is one of a small number of states that continue to recognize common law marriage, known officially in state statutes as informal marriage. Though often misunderstood, the concept carries significant legal consequences in Texas, particularly in matters of property, inheritance, and divorce.
Unlike ceremonial marriage, which requires a license and officiation, common law marriage depends on behavior and agreement. When certain conditions are met, the state recognizes the couple as legally married—without any formal ceremony. Over time, this tradition has proven surprisingly durable, despite multiple efforts to abolish or limit it.
Common law marriage traces its roots to early English legal tradition (though it was abolished in England in 1753), where marriage could be established through mutual consent and cohabitation, especially in rural areas without easy access to clergy or courts. This principle crossed the Atlantic with colonists and became embedded in the legal systems of several U.S. states, particularly those with frontier conditions and scattered settlements.
Texas adopted the practice during its early period of independence and statehood. In the 19th century, it was common for settlers to live as husband and wife without formalities, especially in rural or isolated communities. Recognizing these relationships as legally valid helped ensure protection for women and children, particularly in cases of inheritance, land claims, or disputes over legitimacy. The doctrine continued into modern law, evolving into what is now codified in the Texas Family Code §§ 2.401–2.402, where it is referred to as “informal marriage.”
Under current Texas law, an informal marriage can be established in one of two ways: by filing a Declaration of Informal Marriage with the county clerk (Texas Family Code § 2.402), or by satisfying three conditions.1 These conditions are:
- the couple agreed to be married,
- they lived together in Texas as spouses, and
- they represented to others that they were married.
All three elements must be present. A couple who simply lives together—regardless of the length of time—does not automatically qualify. The key component is the mutual agreement to be married and holding out to the public as such, such as introducing one another as spouses, filing joint tax returns, or sharing the same last name. Once established, an informal marriage has the same legal status as a formal marriage. It can only be dissolved through divorce or death.
A valid common law marriage creates rights and obligations identical to ceremonial marriage. This includes community property ownership and division, spousal rights in divorce proceedings, inheritance rights in intestacy, and eligibility for spousal benefits such as Social Security, insurance, or wrongful death claims. Disputes often arise when one partner denies the existence of a common law marriage—usually during a breakup or after a death. In such cases, the surviving or separating party must prove all three elements in court. There is also a time limit: if no legal action is filed within two years of separation, the law presumes that the parties never intended to be married.2
Despite its deep historical roots, common law marriage has long attracted criticism. Efforts to abolish or restrict it have appeared periodically in the Texas Legislature. Some opponents have argued that the doctrine encourages immorality and debases the institution of marriage by eliminating the requirement for a public ceremony. Critics also contend that it invites fraud or abuse—especially when claims are raised after a partner’s death or during high-asset breakups. Some bills proposed narrowing the doctrine to only couples with children; others aimed to eliminate it entirely. Yet none have gained enough traction to repeal or significantly alter the law.
Common law marriage has endured in Texas for both practical and political reasons. First, it aligns with Texas’s long-standing cultural value of individual freedom and informality. Second, courts and policymakers have recognized the doctrine’s role in protecting vulnerable individuals, particularly women and children who might otherwise have no legal recourse after a long-term relationship ends. Finally, the doctrine provides a safety net in an era where social norms have shifted. As more couples choose to live together without marrying, common law marriage remains a way to formalize responsibilities in situations where couples behave like married partners but never formalize their union.
Common law marriage in Texas represents a distinctive blend of frontier history, ancient tradition, and social pragmatism oriented toward modern realities. Notwithstanding the moral and aesthetic preferences of many Texans for formal marriage ceremonies, informal unions remain an established part of the Family Code, which is unlikely to change.
This article is for general informational purposes only and does not constitute legal advice. Laws may change, and individual circumstances vary. For guidance on your specific situation, consult a licensed attorney in Texas.
