Board Certified - Family Law and Criminal Law, Texas Board of Legal Specialization
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Proving a Texas Common Law
In order to enter into a valid marriage in Texas, whether ceremonial or common law, the parties must possess the requisite capacity to marry. In order to establish a valid marriage in Texas, the parties must:
Be a man and woman (Texas Family Code §2.001 and §2.401);
Not have been divorced within the past thirty days [Texas Family Code §2.002];
Not be presently married to a third party [Texas Family Code §2.002];
Be eighteen years of age [Texas Family Code §2.102], unless the underage party has secured an order from the court granting permission to marry [Texas Family Code §2.103], or has proof of parental consent [Texas Family Code §2.202]; and
Not be related as an ancestor or descendant, related by blood or adoption, nor be siblings by whole, half blood, or by adoption, nor may either be a parent, brother, or sister by whole or half blood, nor be the son or daughter of a brother or sister by whole or half blood [Texas Family Code §1.03 and §1.92]
In essence, the parties to an informal marriage, like ceremonial marriage, must be of the opposite sex, of legal age, and possess no legal impediment, such as those concerning kinship or the existence of a current marriage.
MEETING THE THREE-PRONG TEST
A finding of the existence of a common law or informal marriage is only justified if the evidence shows that the parties agreed to be married, that they lived together in Texas as husband and wife, and they have publicly represented themselves as married. All three of these requisites must exist at the same time. In addition, the common law marriage without formality statute precludes proof of the existence of an informal marriage if the acts occurred in a state other than Texas.
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Jerry W. Melton, Attorney At Law
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