Common-Law (Informal) Marriage in Texas — When Are You Legally Married?

The three elements — and why every one matters

Under Texas Family Code §2.401(a)(2), a common-law (informal) marriage exists if the couple: (1) agreed to be married, (2) after the agreement lived together in Texas as husband and wife (or spouses), and (3) represented to others in Texas that they were married. All three must be present at the same time. Cohabitation without a present agreement to be married is not enough. Neither is calling someone 'my wife' as a shortcut without the underlying agreement.

Common evidence includes: filing joint tax returns as 'married,' signing insurance forms as spouses, referring to one another as husband/wife on social media or at family gatherings, joint bank accounts and property deeds, and testimony from friends, family, or church members. Texts and emails signed 'love, your wife' can be persuasive; so can an executed Declaration of Informal Marriage filed with the Dallas County Clerk under §2.402.

How to prove — or disprove — an informal marriage

The party asserting the marriage bears the burden of proof by a preponderance of the evidence in Texas district court. Courts look at the totality of the circumstances. A properly executed Declaration under §2.402 is essentially conclusive; without one, the proponent must build the case from documents, witnesses, and conduct.

The two-year cutoff in §2.401(b) is important: if the couple separated more than two years before the suit was filed, the law presumes they were never informally married. Practically, this means a partner who wants a share of the community estate must file promptly.

Ending a common-law marriage — divorce required

A common-law marriage in Texas is a marriage. It ends the same way as a ceremonial marriage — by death or by divorce. You cannot just walk away; if you were informally married, you must go through the Texas Family Code Chapter 6 divorce process, complete with the 60-day waiting period, community-property division, and, if children are involved, conservatorship and support orders.

Common-law marriage and immigration / consulate matters

For clients coordinating with the Mexican Consulate of Dallas, note that Mexico does not recognize Texas common-law marriage automatically; a certified copy of the §2.402 Declaration (or the divorce decree resolving it) is often required for property and inheritance matters south of the border. Isabela Garcia's role as consulting attorney for the Consulate makes this coordination routine.