Common Law Marriage

As an acquaintance said on Facebook, calling your same-sex partner “the old ball and chain” is probably not enough to trigger common-law marriage. But watch out, my unmarried (or are you?!) friends and clients.

In February 2015, a Travis County probate court judge ruled that a lesbian’s claim of common-law marriage survived a motion for summary judgment, meaning that there was a possible fact pattern under which he might find that she had a common law marriage under existing Texas law, which he would let her attorney argue at a later date. And this was even prior to the U.S. Supremes weighing in. Such a holding is even more likely, even in more conservative parts of Texas, if there is a nationwide gay marriage holding in Obergefell tomorrow.

With the possible exception of the above, the elements of Texas common-law marriage have only been applicable to opposite sex couples so far, and are fairly gendered in the family code and case law—”man and woman,” and “husband and wife.” But if same-sex marriage is in, then same-sex common-law marriage in Texas is also likely.

The general rule is that when something is found to be unconstitutional, it is found to have always been unconstitutional, meaning that retroactive common-law marriage is possible. The elements of informal marriage in Texas are that the couple (1) agree to be married; (2) live together “as husband and wife”; and (3) represent to others (“hold out”) that they are married. So if you go around calling your intimate partner, who you live with, your “husband,” you might just find yourself married when you try to kick him to the curb.

If you have been saying “spouse” and “husband” or “wife” for years and have reasons you do not want to be married, you might want to contemplate a Cohabitation Agreement making it crystal clear that you do not hold yourselves out as a married couple. Oh, and don’t file for taxes as married, that gets ’em every time. (Hat tip to Kelly Capps, for a Facebook post that got me thinking about this topic.)