Informal (aka “Common Law”) Marriage in Texas

Section 2.401 of the Texas Family Code provides that a party may prove an informal marriage (formerly known as a common law marriage) “by evidence that . . . 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.” Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006). Whether an informal marriage exists is a question of fact, and the party seeking to establish the existence of the marriage bears the burden to prove all three elements. Nguyen v. Nguyen, 355 S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

Proof of an agreement to be married requires only evidence that the parties intended to create an immediate marriage relationship—not just a temporary cohabitation. In re C.M.V., 479 S.W.3d 352, 360 (Tex. App.—El Paso 2015, no pet.). This proof can be by circumstantial evidence. Id.

Evidence of cohabitation means actually living together as a married couple, not just sporadically spending the night. See Ex parte Threet, 333 S.W.2d 361, 363 (Tex. 1960). This cohabitation must occur inside Texas, and it must occur after the agreement to be married. Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App.—El Paso 2015, no pet.).

By far the most hotly contested element in most cases is the element of representing to others. This is the statutory version of the traditional judicial requirement for evidence of “holding out to the public.” Eris v. Phares, 39 S.W.3d 708, 714-15 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

“The element of the couple holding themselves out as married requires more than occasional references to each other as ‘wife’ and ‘husband.’” Castillon v. Morgan, No. 05-13-00872-CV, 2015 WL 1650782, at *3 (Tex. App.—Dallas Apr. 14, 2015, no pet.) (quoting Smith v. Deneve, 285 S.W.3d 904, 910 (Tex. App.—Dallas 2009, no pet.)). “[A] couple’s reputation in the community as being married is a significant factor in determining the holding out element.” Smith, 285 S.W.3d at 910 (quoting Danna v. Danna, No. 05-05-00472-CV, 2006 WL 785621, at *1 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem. op.)).

In Danna, for example, four witnesses testified that the couple represented themselves as being married, the man gave the woman a Valentine’s Day card that read “For My Wife,” and the parties completed an AARP form listing the woman as his wife. The parties also executed a promissory note and deed of trust as “Philip Danna and Alicia Danna.” But neither instrument referenced them as spouses and no evidence suggested anyone in the community saw the AARP card, note, or deed. Danna, 2006 WL 785621, at *2. This evidence was insufficient to raise a fact issue on holding out:

Taken in a light most favorable to [Wife], the evidence simply did not demonstrate that she and [Husband] both consistently conducted themselves as husband and wife in the public eye or that the community viewed them as married.


Id. Accordingly, the court of appeals affirmed the trial court’s directed verdict that no informal marriage existed. Id.

Similarly, in Castillon, the wife presented evidence that the parties obtained auto and life insurance policies listing her as the husband’s spouse, and that the husband had listed her as his wife on a document in connection with purchase of their home. She testified that they represented themselves as being married, but “did not state to whom or how frequently they made the representation.” Castillon, 2015 WL 1650782, at *3. The court of appeals noted that “there was no evidence that anyone in the community saw” the insurance or home purchase documents. Id. at *4. And there was no evidence of the frequency of any representations of marriage. Id. Under these circumstances, the court concluded that the wife “presented no evidence of their reputation in the community for being married.” Id.

In June 2017, however, the Dallas Court of Appeals decided a case that calls into question whether the burden to prove an informal marriage is diminishing. In that case, the court affirmed a jury’s finding of informal marriage based on just a few representations to strangers. In the Interest of B.H.W., No. 05-15-00841-CV, 2017 WL 2492612 (Tex. App.—Dallas June 9, 2017, pet. filed). These are exactly the types of “occasional references” previous cases have found insufficient to meet the holding out element. See Castillon, 2015 WL 1650782, at *4; Smith, 285 S.W.3d at 910 (citations omitted).

Our firm is representing the alleged husband in In the Interest of B.H.W. in seeking discretionary review in the Supreme Court of Texas. It remains to be seen whether the Dallas court’s decision will stand and, if it does, whether it will lead to an increased number of informal marriage claims. We hope not.