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Can you have a secret common-law marriage in Texas

Written by Robert Ray

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle inheritance disputes throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Last updated Apr 29, 2020

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Texas Law

Texas recognizes common-law marriages or what Texas refers to as” informal” marriages. An informal marriage may be proved by one of two ways. The first way is to introduce a declaration of informal marriage that has been filed with the County clerk. If there is no declaration of marriage, a common law marriage may be proved by showing: (1) agreement to be married; (2) after the agreement, living together in Texas as husband and wife; and (3) representing to others in Texas that they were married. FC §2.401. The statutory requirement of “represented to others” is synonymous with the judicial requirement of “holding out to the public.” Both of these methods of proving an informal marriage depend upon the marriage being open and obvious to anyone who bothers to look.

Can you have a secret common-law marriage in Texas

What happens in those circumstances when the informal marriage is kept secret from a few are many people? The courts have held that a marriage that was secret from only a few members of the couple’s family was a common-law marriage because the marriage was widely known in the community. 734 S.W.2d 27. On the other hand, courts have denied a common law marriage when the marriage was know to only a few. 333 S.W.2d 361. In other words the cohabitation must be professedly as husband and wife, and public, so that by their conduct towards each other they may be known as husband and wife.

Update: In a 2019 case, a Declaration of Marriage was filed in 2015 saying that the parties had been married since 2010. If they were married in 2010, it would be too late to contest the marriage. If they were married in 2015, the man’s children could contest the marriage. The court ruled that there was no evidence that the parties held themselves out as husband and wife (representing to others that you are married) before 2015, so there was no marriage before 2015. The children contested the marriage of 2015 saying that he was not mentally competent to marry. The jury agreed with the children that he was not mentally competent. 13-17-00431-CV.

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