Common law marriage is defined by Texas Law. There usually is not a ceremony and usually occurs when two people live together for a long period of time. There is no marriage license and usually no ceremony to mark the beginning of the marriage.
Three things are needed to establish a common law marriage:
- Agreement to be married
- the couple lived together in this state; and
- represent to others that they are married.
Living together is usually pretty easy, the other two parts of the test is usually what must be proved in Court. If you can prove representing to others that you are married then the agreement that you are married may be inferred.
The Courts presume that if neither person to the common law marriage files a divorce action in Court within two years of their separation or the date they no longer lived together, that no agreement to be married existed. Evidence proving a marriage agreement can show the Court that the couple intended there was a marriage.
I proved that a common law marriage existed 25+ years after the couple separated. It takes quite a bit of evidence to prove a common law marriage after the 2 years, but it is possible.
One question often asked is: If I was in a common law marriage and marry someone else without getting a divorce, am I a bigamist?
In Texas you commit bigamy when
- A person is legally married and they:
- (A) imply they marry or does marry a person other than their spouse in this state, or any other state or foreign country, that would, but for the actor’s prior marriage, constitute a marriage; or
- (B) lives with a person other than their spouse in this state under the appearance of being married; or
- they know that a married person other than their spouse is married and he
- (A) implies they marry or does marry that person in this state, or any other state or foreign country, under circumstances that would, but for the person’s prior marriage, constitute a marriage; or
- (B) lives with that person in this state under the appearance of being married.
- (b) For purposes of this section, “under the appearance of being married” means holding out that the parties are married with cohabitation and an intent to be married by either party, i.e. common law marriage.
It is a defense that the actor reasonably believed at the time of the second marriage that the actor and the person whom the actor married or implied they married or began a common law marriage was legally able to be married because the actor’s prior marriage was void or had been dissolved by death, divorce, or annulment.
Bigamy is a3rd degree felony in Texas with serious consequences. So if you believe that you are in a common law marriage, the safest bet is to obtain a legal divorce before entering into another marriage, common or ceremonial. Remember the 2 year presumption of no marriage can be rebutted or negated and the marriage established. So it is a dangerous gamble, especially if your break up was contentious.
Bigamy has a 10 year statute of limitation. This means you must be charged with committing bigamy within 10 years of your second marriage. That’s a long time to hope your ex doesn’t decide they want to exert their rights to their portion of the marital estate. Also remember, the 2nd marriage does not end the marital property rights of the first spouse. So the nice new house you bought with your 2nd spouse or the retirement that you built during your second marriage, your first spouse has a right to part of those assets. Plus you could go to prison for 2 to 10 years and be subject to a fine up to $10,000.
If you need help understanding your rights or help filing a divorce, Boswell Law Firm is experienced in establishing or disproving common law marriages. Call today for your free 10 minute phone consultation. https://calendly.com/boswelltexaslaw/15min or visit our website at https://www.boswelltexaslaw.com/contact/
