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State Bar of Texas

An Informal “Common-Law” Same-Sex Marriage in Texas

Jerry W. Tidwell, Jr.

In Texas, same-sex marriage was not legally recognized until the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges in 2015. However, many same-sex couples had already been living together and sharing their lives for years prior to this ruling. For these couples, establishing an informal “common-law” same-sex marriage in Texas can provide legal recognition and protections.

Here’s what you need to know about establishing an informal “common-law” same-sex marriage in Texas, and how to go about doing it.

What is a Common-Law Marriage?

First, it’s important to understand what a common-law marriage is. In Texas, a common-law marriage is a legal marriage that is recognized by the state even though the couple did not obtain a marriage license or have a formal ceremony. To establish a common-law marriage in Texas, the couple must meet three requirements:

The couple must have agreed to be married (this is often referred to as the “present agreement”).
The couple must have lived together in Texas as spouses.
The couple must have held themselves out to the public as being married.
If these three requirements are met, the couple is considered to be legally married in Texas.

Can Same-Sex Couples Establish a Common-Law Marriage in Texas?

Yes, same-sex couples can establish a common-law marriage in Texas, just like opposite-sex couples. The requirements for establishing a common-law marriage are the same for everyone.

However, it’s important to note that not all states recognize common-law marriages. If a same-sex couple establishes a common-law marriage in Texas but then moves to a state that does not recognize common-law marriages, their legal status as a married couple may be called into question.

Why Establish an Informal Same-Sex Marriage?

There are several reasons why a same-sex couple might choose to establish an informal “common-law” marriage in Texas. Here are a few:

Legal Recognition: Even though same-sex marriage is now legal in all 50 states, some couples may not want to go through the formal process of obtaining a marriage license and having a ceremony. Establishing a common-law marriage can provide legal recognition without the need for a formal process.

Legal Protections: Being legally married provides certain legal protections, such as the ability to make medical decisions for your spouse if they become incapacitated, or the ability to inherit property if your spouse passes away without a will.

Symbolic Importance: For many couples, establishing an informal “common-law” same-sex marriage can have symbolic importance. It can represent a commitment to each other and their relationship, even if they choose not to have a formal wedding.

How to Establish an Informal Same-Sex Marriage in Texas

Establishing an informal “common-law” same-sex marriage in Texas is fairly straightforward. Here’s what you need to do:

Agree to Be Married: The first requirement for a common-law marriage is that the couple must have agreed to be married. This can be as simple as having a conversation about your commitment to each other and your desire to be considered married.

Live Together as Spouses: The second requirement is that the couple must have lived together in Texas as spouses. There is no specific amount of time that you need to have lived together, but the longer you have been living together, the stronger your case for a common-law marriage will be.

Hold Yourselves Out as Married: The third requirement is that the couple must have held themselves out to the public as being married. This can be demonstrated in a variety of ways, such as using the same last name, introducing each other as spouses, or filing joint tax returns.

It’s important to note that establishing a common-law marriage does not require any kind of formal registration or documentation.

Contact Tidwell Law Firm for experienced Family Law Attorneys ready to help you.

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