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Common Law, Informal, and Putative MarriageChapter 5TABLE OF CONTENTSI.INTRODUCTION. 1II.CHANGING DEMOGRAPHICS . 1A.United States Demographics . 1B.Texas Demographics . 1C.Interesting and Relevant Facts . 1III.MARRIAGE . 2A.Every Marriage Presumed Valid . 2B.Legal Capacity To Marry. 2IV.REQUIREMENTS FOR ESTABLISHING AN INFORMAL MARRIAGE . 2V.DECLARATION AND REGISTRATION OF INFORMAL MARRIAGE . 2VI.RECORDING OF CERTIFICATE OF DECLARATION OF INFORMAL MARRIAGE . 3A.Agreement To Be Married. 4(1)Proving Intent . 4(2)Express or Implied Agreement . 5(3)Direct or Circumstantial Evidence . 5B.Living Together as Husband and Wife . 5VIII.THE BURDEN OF PROOF. 7IX.THE EFFECT OF AN INFORMAL MARRIAGE ON THE PARTIES . 7X.DEFENDING A CLAIM OF COMMON LAW MARRIAGE . 7A.Interim Motions . 8B.The Answer . 8C.Plea in Abatement . 8D.Discovery . 8E.Finalizing the Case . 9XI.PUTATIVE MARRIAGES . 9A.Purpose of Putative Marriage Doctrine . 9B.Conditions Giving Rise to a Putative Marriage . 9C.Requirement of Good Faith . 9D.Impediments . 10E.Termination of a Putative Marriage . 10F.Other Rights of a Putative Spouse . 11(1)Inheritance Rights . 11(2)Homestead Rights . 11XII.CONCLUSION . 11i

Common Law, Informal, and Putative MarriageChapter 5COMMON LAW, INFORMAL, ANDPUTATIVE MARRIAGESThis 7.4 million unmarried household represents anincrease of 1.9 million from the 2000 census and 4.2million from the 1990 census.I.INTRODUCTIONChanging lifestyles in the United States havecaused many of us to see a drastic increase in casescoming through our doors where the main question iswhether or not there is a common law or informalmarriage. We know the basic requirements necessaryto establish a common law marriage, but there are manyvariables outside the basics that may determine thevalidity of such a marriage claim. This paper isintended to provide you with not only the tools,statutes, and case law you’ll need to either defend orprosecute a common law marriage case; but also anoverview of the changing demographics that have led tothis increase. (All figures are from the U.S. CensusBureau unless otherwise noted.)B.Texas DemographicsIn 2000, Texas had a total of 7,393,354households. Of those 7.3 million households, 327,246were classified as unmarried partner households. Inother words, 7.6% of all coupled households wereoccupied by unmarried partners. 284,334 of thoseunmarried partner households were occupied byopposite sex couples.In 2010, Texas had a total of 8,922,933 coupledhouseholds. Of those 8.9 million households, 535,376were classified as unmarried partner households; anincrease of 208,130 households. 463,993 of thoseunmarried partner households were occupied byopposite sex couples.The majority of the unmarried partner householdsin Texas were in metropolitan areas. The average ageof the unmarried couples was 35.6 for the maleoccupant and 33.6 for the female occupant.II. CHANGING DEMOGRAPHICSA. United States DemographicsIn the 1960 census there was a total of 450,000households in the United States that were categorizedas persons who were living together, but not married orrelated. Because this category was not broken downfurther, this number includes housemates/roommates,roomers or boarders, and unmarried partners.In 1990, the category, “unmarried partner” wasadded to the questionnaire to measure the growingtendency for couples to live together before gettingmarried. An unmarried partner is defined by the U.S.Census Bureau as “people who were sharing livingquarters and who had a close personal relationship witheach other.” Contrast that with another new category;people who were sharing the same living quarters butwere doing so just to share living expenses, wereoffered the opportunity to identify themselves asroommates or housemates.The 1990 U.S. Census identified a total of 91.9million households in the United States. Of those 91.9million, 3.2 million households identified themselvesunder the new category as unmarried partners.The 2000 U.S. Census identified a total of 105.5million households in the United States. 5.5 million ofthose households identified themselves as unmarriedpartners.This was an increase of 2.3 millionhouseholds in just ten (10) years. [A tenfold increase inthe number of unmarried households from the 1960census.] 4.9 million of those 5.5 million were furthercategorized as opposite sex households.In 2010, the U. S. Census Bureau registered a totalof 116.7 million households in the United States. 7.4million of those households identified themselves asunmarried partner households with 6.8 million of thosewere further categorized as opposite sex households.C.Interesting and Relevant FactsIn 2000, Pamela Smock conducted a study ofunmarried partner households and she published herfindings in the Annual Review of Sociology. Some ofher more interesting and relevant findings to ourpractice are as follows: 21 % of unmarried partner households havechildren together.45.4% of unmarried partner households saidthey live with at least one biological child ofeither partner.The majority of couples who get marriedtoday cohabitated first.75% of unmarried partners plan to marry theirpartner.55% of unmarried partners do marry within 5years.However, 40% of those unmarried partnersbreak up within that same 5 year period.Smock, Pamela 2000, “Cohabitation in the UnitedStates.” Annual Review of Sociology.As you can see, the number of unmarried partnerhouseholds has steadily increased since the U.S. CensusBureau began tracking this category in 1990. Whenyou combine this increase with the number ofunmarried partners that have children together and that40% of them break up after 5 years, it’s easier tounderstand why we are seeing the increase in commonlaw, informal, and putative marriage claims in Texas.1

Common Law, Informal, and Putative MarriageChapter 5stepparent of the other; and lastly, that theyare not a son or daughter of a parent’s brotheror sister, of the whole or half blood or byadoption. Texas Family Code §2.004.III. MARRIAGEA. Every Marriage Presumed ValidThe policy of the State of Texas regarding thevalidity of any marriage, whether ceremonial, commonlaw, or putative, is set forth in Section 1.101 of theTexas Family Code, which provides the following:IV. REQUIREMENTS FOR ESTABLISHING ANINFORMAL MARRIAGEAlthough Texas has long recognized common lawmarriages, the acceptance of this concept has beendescribed as “grudging.” Russell v. Russell, 865 S.W.2d929, 931 (Tex. 1993); see also Texas Employers’Insurance Ass’n v. Elder, 274 S.W.2d 144, 147 (Tex.Civ. App. – Fort Worth 1954), aff’d on other grounds,155 Tex. 27, 282 S.W.2d 371 (1955) “The law does notfavor, but merely tolerates common-law marriages ” Therefore, although Texas has not been able toabolish common law marriages, courts closelyscrutinize these claims. See Russell, 865 S.W.2d at932 “In a society in which non-marital cohabitation forextended periods of time is far more common than itonce was, the fact finder will have to weigh theevidence of a tacit agreement more carefully than in thepast.”Texas Family Code §2.401 establishes therequirements to prove an informal marriage. Inrelevant, part that section states as follows:In order to promote the public health andwelfare and to provide the necessary records,this code specifies detailed rules to befollowed in establishing the marriagerelationship. However, in order to providestability for those entering into the marriagerelationship in good faith and to provide foran orderly determination of parentage andsecurity for the children of the relationship, itis the policy of this state to preserve anduphold each marriage against claims ofinvalidity unless a strong reason exists forholding the marriage void or voidable.Therefore, every marriage entered into in thisstate is presumed valid unless expressly madevoid by Chapter 6 [Suit for Dissolution ofMarriage] or unless expressly made voidableby Chapter 6 and annulled as provided by thatchapter.(a) In a judicial, administrative, or otherproceeding, the marriage of a man andwoman may be proved by evidence that:B.Legal Capacity To MarryBefore anyone can enter into a valid marriage inTexas, whether ceremonial or informal, they mustpossess the legal capacity to marry. In order to establisha valid marriage in Texas, the parties must establish thefollowing:(1)a declaration of their marriage has beensigned as provided by this subchapter; or(2) the man and woman agreed to bemarried and after the agreement theylived together in this state as husbandand wife and there represented to othersthat they were married.(1) That the marriage is to be between a man anda woman Texas Family Code §2.001 and§2.401;(2) That neither party has been divorced withinthe past 30 days Texas Family Code §2.004;(3) That neither party is presently married. TexasFamily Code §2.004;(4) That each party is at least 18 years of ageTexas Family Code §2.101, unless theunderage party has secured an order from thecourt granting permission to marry TexasFamily Code §2.103, or has proof of parentalconsent Texas Family Code §2.102; and,(5) That the parties are not related as an ancestoror descendant, by blood or adoption; that theyare not brother or sister, of the whole or halfblood or by adoption; that are not related by aparent's brother or sister by whole or halfblood, or by adoption; that they are not theson or daughter of a brother or sister, of thewhole or half blood or by adoption; that theyare not the current or former stepchild or(b) If a proceeding in which a marriage is to beproved as provided by Subsection (a)(2) isnot commenced before the secondanniversary of the date on which the partiesseparated and ceased living together, it isrebuttably presumed that the parties did notenter into an agreement to be married.Thus, this subsection provides an evidentiarypresumption of no marriage if no suit for divorceclaiming an informal marriage is filed within two yearsof the parties' separation.V.DECLARATION AND REGISTRATION OFINFORMAL MARRIAGEThe requirements necessary to establish aninformal marriage pursuant by declaration as provided2

Common Law, Informal, and Putative MarriageChapter 5in Texas Family Code §2.401(a)(1) are contained inTexas Family Code §2.402. That section provides asfollows:OTHER PARTY I HAVE NOT BEENMARRIEDTOANYOTHERPERSON. THIS DECLARATION ISTRUE AND THE INFORMATION INIT WHICH I HAVE GIVEN ISCORRECT.”;(6) spaces immediately below the printeddeclaration and oath for the parties’signatures; and(7) a certificate of the county clerk that theparties made the declaration and oathand the place and date it was made.(a) A declaration of informal marriage must besigned on a form prescribed by the bureau ofvital statistics and provided by the countyclerk. Each party to the declaration shallprovide the information required in the form.(b) The declaration form must contain:(1) a heading entitled "Declaration andRegistration of Informal Marriage,County, Texas";(2) spaces for each party's full name,(including the woman's maiden surname,address, date of birth, place of birth,including city, county, and state, andsocial security number, if any;(3) a space for indicating the type ofdocument tendered by each party asproof of age and identity;(4) printed boxes for each party to check"true" or "false" in response to thefollowing statement: "The other party isnot related to me as:VI. RECORDING OF CERTIFICATE OFDECLARATIONOFINFORMALMARRIAGESection 2.404 of the Texas Family Code outlinesthe procedures the county clerk should follow forfinalization of the declaration of marriage. Section2.404 provides as follows:(a) The county clerk shall:(1)determine that all necessary informationis recorded on the declaration ofinformal marriage form and that allnecessary documents are submitted tothe clerk;(2) administer the oath to each party to thedeclaration;(3) have each party sign the declaration inthe clerk's presence; and(4) execute the clerk's certificate to thedeclaration.(A) an ancestor or descendant, by bloodor adoption;(B) a brother or sister, of the whole orhalf blood or by adoption;(C) a parent's brother or sister, of thewhole or half blood or by adoption;or(D) a son or daughter of a brother orsister, of the whole or half blood orby adoption;(E) a current or former stepchild orstepparent; or(F) a son or daughter of a parent’sbrother or sister, of the whole orhalf blood or by adoption.”(a-1) On the proper execution of the declaration,the clerk may:(1) prepare a certificate of informal marriage;(2) enter on the certificate the names of thepersonsdeclaring their informalmarriage and the date the certificate ordeclaration is issued; and(3) record the time at which the certificate ordeclaration is issued.(5) a printed declaration and oath reading: "ISOLEMNLY SWEAR (OR AFFIRM)THAT WE, THE UNDERSIGNED,ARE MARRIED TO EACH OTHERBY VIRTUE OF THE FOLLOWINGFACTS: ON OR ABOUT (DATE) WEAGREED TO BE MARRIED, ANDAFTER THAT DATE WE LIVEDTOGETHER AS HUSBAND ANDWIFE AND IN THIS STATE WEREPRESENTED TO OTHERS THATWE WERE MARRIED. SINCE THEDATE OF MARRIAGE TO THE(b) The county clerk may not certify thedeclaration or issue or record the certificate ofinformal marriage or declaration if:(1)either party fails to supply anyinformation or provide any documentrequired by this subchapter;(2) either party is under 18 years of age; or3

Common Law, Informal, and Putative Marriage(3)Chapter 5either party checks "false" in response tothe statement of relationship to the otherparty.A.Agreement To Be MarriedTo establish a common law marriage the evidencemust show that the parties intended to have a present,immediate, and permanent marital relationship, and thatthey did in fact agree to be husband and wife presently– not in the future. Winfield v. Renfro, 821 S.W.2d 640,645 (Tex.App.-Houston [1st Dist.] 1991, writ denied.)(citing Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex.Civ. App. - El Paso 1978, no writ). “To establish thiselement, the evidence must show the parties intended tohave a present, immediate, and permanent maritalrelationship and that they agreed to be husband andwife” Id. See also Gary v. Gary, 490 S.W.2d 929, 934(Tex. Civ. App.-Tyler 1973, writ ref’d n.r.e.) whichstated “Each of the elements is necessary, and it isparticularly essential that the parties mutually agree thatthey would then and thenceforth be husband and wifeand that the following cohabitation be on the faith ofthis mutual agreement and promise.”(c) On execution of the declaration, the countyclerk shall record the declaration or certificateof informal marriage, deliver the original ofthe declaration to the parties, deliver theoriginal of the certificate of the informalmarriage to the parties, if a certificate wasprepared, and send a copy of the declarationof informal ma

Fort Worth, TX 76107 . Telephone: (817) 735-1305 . Facsimile: (817) 735-9071 . E-mail: sjn@naylorfamlaw.com . EDUCATION: Texas Tech University School of Law . . Tarrant County Family Law Bar Association (2007-2009) Supreme Court of Texas Uniform Forms Task Force 2011 to present .