Dallas Personal Injury Attorney Blog

I met another couple last week that told me that they had a "common law marriage." They didn't. As usually is the case when a "common law" marriage is claimed, what was actually going on was that one of the parties wanted to have the benefits, but not the responsibilities, of marriage. The signs were obvious: his name isn't on the birth certificate of their child, he wears no ring, and when asked whether he wanted to participate in decisions affecting his child, he said he "didn't want to sign anything." When I asked the couple if they were married, he said nothing, and she said they were "common law married." She was wrong, and his silence spoke volumes.

Marriage of any kind is primarily a thing of the heart. The ability of a couple to be married without a ceremony under Texas common law (and the law of most other states) recognizes that fact - and it also recognizes the fact that you cannot be "halfway" married. Either you are in the relationship all the way, or you are not married. You cannot ride the fence on the issue.

Nor is there any real impediment to being definitely, undeniably married if that is what a couple wants. Getting married is so cheap and so easy that there just isn't any reason why a couple who want to be married wouldn't just spend the minimal time and money that it takes to get a marriage license. With the consequences of being wrong potentially being huge, there is no reason to leave any doubt.

Texas recognizes the existence of marriages in the absence of a marriage license, but like the other states which do so, if there is ever an issue about whether you were married, the party that is claiming to have been married will have to prove it in court. This will mean proving three things: the man and woman agreed to be married, they lived together as husband and wife, and they "held themselves out" as married to the public. All of these factors must exist, and they must exist at the same time, or there is no marriage.

For example, just living together, regardless of how long you do so, will not make you married. Nobody can be fooled into becoming married just because they share the same apartment with their lover. Nobody gains any rights just by being someone's room mate.

Nor does a marriage exist when fiancees, fully intending to marry in the future, begin living together: although they are "living together as husband and wife" for all intents and purposes, they are not yet telling people that they are already married, and have not agreed with each other that they are already married. And you have to be consistent about it: you can't be married "sometimes".

In my office, the question of the existence or nonexistence of a common law marriage comes up most often when I am asked to look at a case where someone died in an accident, and his or her "spouse" wants to sue for damages. With one party to the marriage being dead, it can be difficult for the other party to prove that the dead party "agreed to be married" and "lived together as husband and wife" with the survivor. This is particularly true where the "marriage" was of short duration or there are multiple people claiming to be entitled to damages due to the death. In the absence of a marriage license, trying to persuade the government or an insurance company that you were married to someone who has died (and that you are therefore entitled to tens or hundreds of thousands of dollars in benefits) is hard and may be impossible.

Family law attorneys and general practitioners see the issue come up in the context of claims made on the end of the "marriage", in the determination of who the legal heirs are of a person who has died, and in determination of who gets custody of the children.

These are major issues, and in my view it is silly to leave them to chance. If your partner loves you, he or she should insist on giving you (and any children) this protection. On the other hand, if he or she is a "fence sitter", it is probably long since time to get them off that fence.

John Polewski is a board certified attorney with offices in DeSoto.