2401 common lawThe new Obergefell decision is the beginning of marriage rights in Texas. But, with that comes many questions about how the new marriage rights apply to real people in their real situations. One question I heard recently —

We had a commitment ceremony several years ago. It was held in Texas. We have lived together in Texas the whole time. After that we told other people that we were married, and referred to each other “wife”, and didn’t really care what Texas law had to say. Do we need to have a ceremony now to be really married? Are we common law married?

The Obergefell decision held that same-sex couples are entitled to the same rights to the civil institution of marriage that heterosexual couples have.  The opinion discusses marriage licenses. So, the question arises as to whether Texas must permit same-sex couples to be informally married under Texas law.

There are many misconceptions about what constitutes informal marriage in Texas. Sometimes it is also called common law marriage. To be common law married in Texas, two people must agree to be married, live together in Texas, and represent to others in Texas that they are married. Contrary to many lay opinions, there is no time requirement to be common law married. There have been instances where common law marriage has been found after just one day.

Also two people can fill out an informal marriage license with the county and declare their intent to be common law married, including the date as of which they intended to be married.

Another point, once two people meet the standards of informal marriage, they are married. They remain married until they divorce.

Now, back to whether informal marriage applies to same-sex marriages post-Obergefell.

The Family Code section 2.401 says that informal marriage may be between a man and a woman.

There is no law that says that Texas must recognize informal marriages at all. But, it seems that Obergefell is pretty clear that Texas must extend the same civil marriages to same-sex couples as heterosexual couples. So, Texas would have two options. First, they could repeal the informal marriage statute completely and only recognize marriages by license issued by the state. Many states do not allow for informal marriages, so Texas is not required to offer them at all. Second, if Texas is going to offer informal marriages, they cannot restrict them to heterosexual couples.

A district judge in the federal court in Beaumont recently applies the Obergefell decision to informal marriage. That decision is not binding on state courts, but can be instructive.

So, back to the question, if the couple in our question agreed that they were married at the time, and they lived together in Texas, and told people they were married, then YES they are probably informally married as of the date that they met all three of those steps.