Originally, the concept of a common law marriage is a marriage that is considered valid by both partners but has not been officially registered with a state, religious register or performed in a formal religious service. In reality, the couple’s act of representing themselves to others as being married, and the organization of their relationship as if they were married, acts as proof that they are married.
It is relevant to distinguish between law marriage under the common law and the legal systems of division of marital property under the common law, including community property and the separation of property.
In some laws, a marriage in common law produces legal effects, but the term also has wide informal use. The term common law marriage is often used colloquially or by the media to refer to couples who cohabit, disregarding the rights that these couples may or may not have, which can create confusion among the public as to the rights of unmarried partners.
The origin of common law marriage
Common law marriage is rooted back to the 1800s when an American judge recognized for the first time the validity of a common-law relationship in the Fenton v. Reed in 1809. The New York Supreme Court admits that two people who have lived together for several years, and who consider themselves husband and wife in the eyes of society, are common law married even in the absence official ceremony.
From most American states that recognize common law marriage (Alabama, Colorado, District of Columbia, Georgia (formed before 01/01/97), Idaho (formed before 01/01/96), Oklahoma, Pennsylvania (formed before 1/1/05), Rhode Island, South Carolina, Texas, Utah ), have adopted legal texts to specify more clearly the conditions for the formation of this union.
Common Law Marriage in Texas
Texas happens to be one of the states that recognize common law marriage. In Texas, common law marriage is referred to as an informal marriage.
In the Texas Family Code, section 2.401 a common law marriage is be constituted by its registration with the county, or by meeting three (3) requirements that show:
- An agreement to be married;
- Proof of cohabitation in Texas;
- An Evidence that shows others that the couple is wedded.
An informal marriage comes to force or is considered as being registered once a declaration approved by the bureau of vital statistics is signed. The parties involved must show evidence of age and identification, and state that they are not blood-related. Finally, they must consent to the written contract and vow of section 2.402 of the Family Code:
“I SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT.”Texas Family Code Sec. 2.402
Even in the absence of registration with a county in Texas, a couple is considered to have been in a common law marriage when they have shown abidance with these three requirements:
- The man and woman in question have agreed to marry
- The man and woman cohabit in Texas
- The man and woman are open about their marriage to other parties
Common Law marriage is acknowledged under Texas law the same way as with the couple that is officially wedded. This entails that common law partners will have to employ the services of a Texas divorce lawyer to guide them when they want to end the relationship. Both partners are obligated for the debts as well as child care and support. Hence, it is crucial to discuss a possible divorce incident with a specialized divorce lawyer.
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Ending a Common Law Marriage in Texas
According to a new provision of the Family Code, either partner in a common law relationship has two years after separating to file an action to prove that the marriage did exist. However, even if the time has expired for you to obtain a legal divorce, other measures can be taken to get orders for payment of child support and visitation for children. A Texas divorce lawyer helps couples pick the best option open to them.
There are two ways to terminate a common law marriage. When the couple has children or property, and debts remain undivided, couples need to get expert advice from a divorce lawyer about a traditional divorce.
However, when there are no children or contested property, couples can separate; and under the new law, if neither party affirms that a marriage existed within two years of the date when the couples ceased cohabiting, then it is assumed that no marriage ever existed in the first place. While this does not automatically show that the marriage never existed, it only means that the burden of proof falls on the individual trying to establish the existence of a legitimate common law marriage.
When an informal marriage does exist; either individual can file for a formal separation. However, it is highly advisable to hire the services of a divorce lawyer if there are contested issues involving children, funds, or property.
The court proceedings of formal divorce cover issues relating to child support, child custody, and property.
The reasons for the recognition of such institutions in competition with marriage
The common law marriage was very early recognized by the American judge first of all for practical reasons related to the difficulties to find a religious officer and to move in the cities to carry out an official ceremony. On the other hand, the American judge was motivated by moral reasons, preferring to encourage lawful unions. Today these reasons are obsolete and the recognition of common law unions can be explained more by the desire to provide better protection to individuals. Indeed, the guarantee of the protection of property rights, inheritance rights, and the legitimization of children born of these unions are all reasons to recognize this type of marriage.
The legal regime of common law marriage
The legal regime of common law marriage varies from state to state, but we can note two major elements that come up systematically: cohabitation and the appearance of a married couple in the eyes of society. The burden of proof is on the party claiming recognition of the existence of a common law marriage.
Cohabitation does not pose a problem in itself because it meets the classic definition of the term to know how to live as a couple in the same residence. What is more problematic is to demonstrate that the couple behaves in the eyes of the community like a married couple: for example by having the same last name, by calling each other “husband and wife”, or by filling out a declaration. common tax.
It is therefore the behavior of the couple as perceived by third parties that determines whether there is indeed a common law marriage. One can also find other conditions of formation, the capacity to contract, and the current and common intention to be married. Finally, we note that common law marriage is reserved for heterosexual couples, which is not surprising since this common law situation has the status of marriage recognized. However, marriage is reserved for heterosexual couples.
The terminology used shows that it is a real marriage in substance but not in form since it is a common law marriage. As such, the common law married couple is given the same rights and obligations as common law married couple. To end the marriage, the couple must initiate legal divorce proceedings in the same way as a legally married couple. There is no such thing as a “common law divorce”.
Given the heavy legal consequences involved in the recognition of a common law marriage, it is easier to understand the restrictive application by the judge of the criteria for forming such a union. If the training conditions are difficult to meet, it is to limit the recognition of these common law marriages to the most convincing cases.
Today there are only sixteen states that recognize common law marriage. The vast majority of states have preferred to abandon it for various reasons that Jennifer Thomas develops in her article. The first being that the usefulness of a similar and competing form of union with legal marriage has become less with the increase in population and the greater ease of getting around and finding religious officers.
Another reason is the fear of fraud in the absence of formalities and the desire to protect legal marriage. Finally, it is a way for States to encourage official unions more conducive to the stability of the home. Only this last argument is weak when we see the increasing number of divorces. Legal marriage is therefore no more a guarantee of stability than common law marriage. On the other hand, we can argue in favor of cohabitation which can be analyzed as a trial period before marriage. The commitment is thus reinforced because the couple takes the time to reflect.
Yet all these reasons are unconvincing given the seriousness of the negative consequences that the abandonment of common law marriage has had in certain circumstances. Wives dependent on their husbands find themselves without resources and without the possibility of claiming maintenance payments for the breakdown of the common law marriage. On the other hand, minorities with an immigrant background and people with low rents and little education often ignore the law and are unable to hire a lawyer to have their rights recognized when they thought they had them automatically. . Finally, this also poses a problem for the recognition of inheritance rights and children born out of wedlock.
The absence of a legal regime for cohabitation: the constitutive elements
In form, cohabitation is very close to common law marriage and official marriage, but in reality, and legally, it does not provide the same guarantees. Unlike common law marriage, cohabitation does not benefit from any legal regime. There are only a few scattered provisions applicable to cohabitation in the civil code, often by extension of the provisions relating to married persons. The law, therefore, does not recognize a legal act in the formation of cohabitation but only a voluntary legal fact animated by the material and non-legal Will of two individuals. Cohabitation for this reason does not produce any legal effect directly resulting from its formation.
Common law marriage usually suffers from the problem of proof. Often an issue that is raised is that years after the couple has established the relationship, there is conflict and it is necessary to return in time to where the relationship was established because of the evidentiary burden on one party or another. Sometimes one party will challenge another as an heir to the deceased estate of a person that died. Without an official marriage certificate, it is very difficult to prove the existence of a marriage-like relationship. For this reason, a cohabitation contract or a cohabitation agreement can often assist.