Texas Legal Glossary · Family Law

Common Law Marriage (Informal Marriage)

Written and reviewed by Shane M. Boasberg, founder of SMB Law, PC · Licensed in Texas since 2003 · Updated October 2026

Definition: Common law marriage, called informal marriage in Texas Family Code § 2.401, is a legally valid marriage created without a license or ceremony when two people agree to be married, live together in Texas as spouses, and represent to others that they are married.

Also called: informal marriage, marriage without formalities

What common law marriage means in Texas

Common law marriage, which the Texas Family Code calls informal marriage, is a real marriage with every legal consequence of a ceremonial one. Under § 2.401(a)(2), an informal marriage exists when the parties agreed to be married, and after the agreement lived together in Texas as spouses, and represented to others in Texas that they were married. All three elements must exist at the same time. Living together for a set number of years is not an element and never has been.

Under § 2.401(a)(1) and § 2.402, a couple can also file a Declaration of Informal Marriage with the county clerk, which is conclusive proof of the marriage from the date stated. Both parties must be at least 18 and not married to anyone else.

How it works in practice

Disputes arise when the relationship ends or one partner dies. One person says they were married; the other says they were roommates. The agreement to be married can be proved by circumstantial evidence. Courts look at joint tax returns filed as married, introductions as husband or wife, a shared last name, and insurance or lease applications listing a spouse. Holding out means a reputation in the community as a married couple, not a stray reference.

Timing matters. Under § 2.401(b), if no proceeding to prove the marriage is started within two years after the parties separated and stopped living together, the law presumes they never agreed to be married. The presumption can be rebutted, but the burden shifts. Once an informal marriage is proved, ending it requires a divorce, with the same rules for community property, spousal maintenance, and children as any other marriage.

Why it matters in your case

Whether a couple was informally married decides whether the house, the retirement account, and the business built during the relationship are community property to be divided or simply belong to whoever holds title. Couples who do not want to be married can protect themselves by never filing taxes as married and by signing a cohabitation agreement. We litigate these cases from both sides, and they turn on documents far more than on testimony.

This entry explains Texas law in general terms and is not legal advice for any specific situation. Statutes and case law change; the date above reflects the last review.