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.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.