A Texas common-law marriage can occur when the parties agree to be married, subsequently live together as married within the state, and represent themselves as married. Tex. Fam. Code Ann. § 2.401. The agreement to be married is a separate requirement that must be proven, although it may sometimes be inferred from evidence of the other two requirements.
CLAIM OF INFORMAL MARRIAGE
In a recent case, a woman appealed the dismissal of her claim of common-law or “informal” marriage. The parties had previously been married and were divorced in 2014. They subsequently rekindled their relationship later that year. The alleged wife petitioned for divorce in May 2016, claiming they had “rendered a common-law marriage” in December 2014 and had stopped living together around the time she petitioned for divorce.
The man denied that there was an informal marriage and filed a motion for summary judgment, seeking the trial court to find that the woman had failed to establish its existence. The affidavit the woman attached to her response stated the parties reconciled and agreed to be married on or about December 14, 2014. She said they moved in together and represented themselves as married. She also attached affidavits from others. She also submitted an email from the man to his child’s teacher in which he referred to her as his wife. She also provided a number of documents in support of her position. Following a hearing, the court granted the man’s motion for summary judgment.
AGREEMENT TO BE MARRIED
The woman appealed, arguing there was a genuine issue of material fact regarding the parties’ agreement to be married. The appeals court noted it was undisputed that the parties lived together and represented themselves as married. The man’s motion for summary judgment was based on whether there was evidence they had agreed to be married.
The man argued the woman had not raised an issue of fact because she first claimed they agreed to be married on December 14, 2014 and later acknowledged he did not have the intent to agree to be married at that time. The appeals court noted, however, that the language the man referenced was part of the woman’s alternative claim. She indicated that, if the court found the man did not have an intent to agree to be married, she would argue in the alternative that they had entered into a putative marriage, or “attempted informal (common-law) marriage.” Because it was part of the woman’s alternative claim, the appeals court found it was not an acknowledgment the man did not have an intent to agree to be married.
The man argued the woman was unable to give a date when the agreement occurred, but instead referred to how their relationship continued after they were divorced. The appeals court noted, however, that an agreement to be married can be proven by direct or circumstantial evidence that the parties intended to have a permanent marital relationship and agreed to be spouses. The appeals court found the woman’s testimony that they had never specifically stated they agreed to be man and woman did not mean there was not an agreement to be married.
The man argued that there must be evidence showing the agreement by both parties. The appeals court found there was some evidence he had agreed to be married. The woman testified he had said she was “his wife.” She said he had her broken wedding ring fixed and gave it back to her to wear. There was evidence the man sent an email to a teacher referring to her as his wife. There was also evidence of a text he sent to the woman referring to her as his “beautiful wife.” The appeals court found there was some evidence the man had agreed to be married, raising an issue of fact as to whether there was a present agreement to be married.
The appeals court reversed the portion of the judgment dismissing the woman’s informal marriage claim and remanded the case back to the trial court.
ENDING A POTENTIAL INFORMAL MARRIAGE? CALL MCCLURE LAW GROUP TODAY
This case shows that the parties to an informal marriage do not necessarily have to each specifically state “I agree to be married.” It also shows that the party alleging the existence of an informal marriage does not necessarily have to prove that the agreement occurred on a specific date. If you are considering ending a relationship that could potentially be an informal marriage, you should see the advice of an experienced Texas family law attorney. Schedule your consultation with McClure Law Group by calling our office at 214.692.8200.