Burden of Proof of Common Law Marriage in Texas
I am no legal expert, but after reading this, though an old post, there are TWO main points of discussion that were completely answered incorrectly. First, the burden of proof does NOT have to be through a county clerk or informal marriage certificate. Under Texas Family Code, as I read and will post at the end of my comments, it states one way is through the county clerk declaring you are married (recognized as informal marriage), and the second is proving you are in a common law marriage by way of both declaring as married, live at the same residence AND have a witness/witnesses that agree as witness that you are married. Now, for those wondering on the second point of discussion is the "what if we WERE living together and now we are no longer together or such, incarceration death, etc), previous post stated there are no statute of limitations and its completely false. The statute of limitations to prove your common law marriage is two years. The state assumes a common law marriage did not exist if it is reported or CLAIMED after two years. By claim I mean, lets say the irs. I am attaching via DHHS of Texas their brief description of common law marriage and then actual law under the Texas Family Code (yes some of you attached it but the specifics were not attached and excluded).
Does Texas Recognize "Common Law" marriage?
Common-law marriage, also known as "informal marriage" is legal in Texas. A couple may choose whether or not to register their informal marriage. If they do choose to register, both the husband and wife must appear before the County Clerk to file a Declaration of Informal Marriage. The couple must list the date on the declaration from which they have considered themselves married. In other words, a couple can be married for some period of time before registering their informal marriage.
There are two ways a couple may prove that they are informally married:
1. They can file a Declaration of Informal Marriage (available from the County Clerk's office)
-or-
2. They meet all of the following conditions:
a. the couple agrees that they are married;
b . they live together in Texas; and
c. They represent themselves to other individuals that they are married to one another [Family Code § 2.401]
F[Family Code § 2.401]
UBCHAPTER E. MARRIAGE WITHOUT FORMALITIES
Sec. 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
(c) A person under 18 years of age may not:
(1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under Section 2.402.
(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.