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.

 

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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.