I still get questions about how Texas’ informal (aka common law) marriage statute applies to same-sex couples prior to the date that the Obergefell opinion was released. Remember that Obergefell found that the provisions of the Defense of Marriage Act prohibiting marriage between couples of the same sex are unconstitutional, thus legalizing same-sex marriage.

The requirements for an informal (aka common law) marriage in Texas are 1) agreement to be married, 2) holding out as married, and 2) cohabitating in Texas. Once married, there is no “informal divorce” – the couple must proceed with a regular divorce proceeding under Texas law.

What happens if a couple performed the elements of a Texas informal marriage prior to the effective date of Obergefell? What if the couple was calling themselves marriage starting some time way before same-sex marriage was legalized, including behavior that checks off all three informal marriage elements?

The answer is – or should be – that the informal marriage statute applies to same-sex couples just as any other couple in Texas. The fact that Obergefell found the underlying law unconstitutional means that the law was void as if the law never existed. If the law never existed, then same-sex marriage doesn’t really have a “beginning” date. So, if a couple started acting like they were married, calling each other husband or wife some time back, acting married to all their family and friends, and lived together in Texas, then they may very well be informally married. An actual agreement to be married can be inferred from the conduct.

The real wrinkle comes if a couple met all of the elements of an informal marriage, but broke up some time before Obergefell and then moved on to another relationship. While Texas does not have informal divorce, if the parties are separated for 2 years then the law presumes that there was never an agreement to be married.

A few months ago, South Carolina affirmed this concept, finding that the Obergefell opinion applies “retroactively”. The result of the opinion was that a recently separated same-sex couple were common law married since 1987. See Can same-sex couples be common law married? (I think the word “retroactive” is imprecise, since a finding that a law is unconstitutional actually erases the law totally, but I’m being a little nit-picky here.)

Also, Pennsylvania upheld a common law marriage between a same-sex couple, rejecting a trial court’s ruling that it was “legally impossible” to form a same-sex marriage prior to the Obergefell ruling. See Court in another state recognizes pre-Obergefell common-law marriage between gay partners.