Informal Marriage
There is one kind of marriage and two ways to get there in Texas.
The one kind of Marriage is that marriage relationship that, once established, can only be dissolved by divorce, annulment, voidance, or death. I’m about to talk about formal and informal marriage, but let me be clear – they both establish a Marriage of equal dignity and effect.
Of the two routes to establish a marriage,
The first and most usual route is a formal, ceremonial marriage, with the license and the officiant. The second but equal route is informal marriage, sometimes called common law marriage. The requirements of a ceremonial marriage are in the code and too dull to recite here.
The requirements of an informal, common law marriage are also their usual method of proof by a preponderance of the evidence in a contested environment.
An informal marriage may be proved by three facts that must exist together as a unity.
1. Agreement
The parties must agree that they are married.
2. Cohabitation (In Texas)
The parties must live together as spouses, in Texas. There is no minimum period of time set forth in the statute.
3. Holding out
The parties must represent to others that they are married.
An informal marriage, once established, cannot be dissolved informally; but rather, must be dissolved in the usual ways to dissolve a marriage, e.g. death, divorce, etc. If parties to an informal marriage are separated for two years or more, a judge or jury shall presume that there had been no agreement that they were married. This is a rebuttable presumption and the marriage can still be proved by proving the three points above.
Two years of separation does not disprove, dissolve, or end a common law marriage. It merely creates a presumption as to one element of the proof of that marriage.
Why do we have common law marriage and what's so interesting about it?
In the American South, including Texas, common law marriage arose to help poor, often rural, folks who couldn’t afford weddings, lived too far from churches and registrars, and lived married lives a ceremony notwithstanding and were in need of the protection of the laws. Functionally, this protected women who bore children and made homes for the Kentucky debtors, boozers, and scoundrels who settled Texas (among the other Westward bound and honorable strivers) against claims that these wives were loose women not entitled to the dignities and protections of the marriage relationship.
Evolving laws already despising bastardry grew to despise deadbeats, and the common law fashioned informal marriage. Out of these origins the informal route to marriage continues to protect people who for many reasons or any reason didn’t have a license or a ceremony to formalize their union.
That arc of history bending towards justice, insofar as the rules applicable to common law marriage, now are helping to cure injustices that were until very recently affecting same-sex couples, who were excluded from marriage altogether.
Among those injustices to gay folks who separated or lost a partner without the protection of marriage were sometimes homelessness, partial or total disgorgement of property and loss of accrued benefits of joint labor and investment, and loss of Social Security retirement benefits.
With the United States Supreme Court’s 2015 decision in Obergefell v. Hodges, the states must offer marriage to couples of the same sex on the same terms and conditions as the states do to couples of the opposite sex. That means that in Texas same sex couples had two routes to marriage like everybody else. They could not go backwards and get licenses, but they now could prove marriages by conduct and do so retroactively if they meet the three elements.
Because the marriage prohibition law concerned what the US Supreme Court announced is a fundamental right, such laws are void ab initio. That is to say we are to construe them as never having existed. This opened the door to a very special way for same sex couples to cure old ills and get more accurate justice insofar as the date of their marriages.
Mr. McChesney was the first attorney in the 254 counties in the state of Texas to prove an informal marriage for a same-sex partner to a jury in November of 2016. He is called upon to speak and consult on these issues routinely and has a special expertise on the doctrines associated with informal marriage.