Is Texas Common Law Marriage Actually “Common Law”?

Natalie JaroszewskiJuly 19, 2022 4 minutes

You have probably heard the term "Common Law Marriage" and vaguely know that after living together for several years two people could be considered legally married. However, it is not that simple.

A common law marriage is still a legal union and as such there are three requirements that must be met:

  1. Live together (Texas law does not require the couple to be together for a specific period of time.)
  2. Present to others that you are married (like filing taxes jointly)
  3. Present intent to be married now and forever

However, despite its name, common law marriage is not actually common law in Texas. It is statutory law. We should technically refer to these unions as an informal marriage or a marriage without formalities (that's what legislators called it when they wrote it into the law). These incredibly dry terms are more accurate but not as well known to you and me.

What Is the Difference Between Statutory and Common Law, Anyway?

Before we dive into how common law marriage became a statute, it's important to understand the difference between common law and statutory law. In the USA, there are only two types of laws. The first is statutory law, and the second is common law.

When most of us think of a law, we're thinking about a law debated and passed by our elected representatives. Statutory Law refers to these kinds of laws. For example, the Social Security Act (1935) is a law, passed by Congress, that established social security benefits.

Common Law refers to a judge's decision, which creates a precedent that binds future courts. As a practical matter, precedent has the same effect as passing a law. This is a bit tricky to explain because judges create laws not passed by lawmakers.

Who gave judges the power to make laws? Technically, judges themselves, but for a practical reason. Lawmakers can't anticipate every possible interpretation and use of the law (and it would be a mess if they tried). Also, it's judges who have to decide which type of law applies to a particular case because there are many instances where two or more laws could apply to one fact pattern. So, that is where the common law steps in. Judges examine how laws are understood and applied to all the random scenarios of everyday life.

The important bit here is that a precedent is created through either the real-world application of statutory law or an instance where there is no law on the books. For example, it is illegal to hit a person with your motor vehicle, but courts have ruled that even under that law, you are not liable when a tornado picks up your car and hits someone. This, Act of God Defense, wasn't passed by any lawmaking body, instead, it was created by a judge. That's precedent.

Common law ensures that similar court cases result in similar outcomes. It makes the law predictable.

Why Have Common Law Marriages?

Imagine with me for a moment that you are a hard-working frontier woman. You have lived with your husband for 2 years now, but he tragically dies when the plow horse kicks him square in the chest. You hold a funeral, and his family makes the long trip to your remote ranch. While you are still grieving, his family claims they own the ranch and have full rights to all of your husband's earnings because you have no official marriage license. You disagree. As the widow, you claim the ranch and his earnings are rightfully yours. You can make this claim because of common law marriage.

The core idea of an informal marriage is a tradition from the ancient world, incorporated by medieval England. In the ancient world, a couple could simply present themselves as a married couple, and it was binding.

The broader idea of common law emerged naturally, to provide medieval England with reliable laws to govern its societies. In any society, people need justice daily, but English Parliament originally met rarely. To fill this need, judges would make circuits from town to town, hearing cases. Incidentally, this is where we got the term circuit court. As such, common law arose quite organically from the system in place.

In order to have marriages in these smaller towns be legally recognized, common law marriages were born. Common law marriages ensure couples without a marriage license have the same legal rights/validity as a couple that has a marriage license.

Today, Texans still live many miles away from county courthouses. Instead of driving out to the courthouse to sign an official marriage license, couples may choose to enter into an informal marriage.

Why Do We Still Call It Common Law Marriage?

Americans have long used common law. In fact, Americans used common law before the USA was created. As we've noted, common law comes from English common law, which was born during the early Middle Ages. So it is a very old tradition. The colonists, later the first American citizens, considered English common law their birthright. This meant that precedents already established in England continued to be the law in the American colonies. Later, when forming their legal systems, the individual states and the national government of the USA adopted/continued using common law.

Additionally, common law was the majority of our law until the 20th century. Many lawmaking bodies examined the precedents set, and they either passed them as statutory law or passed laws that overrode those precedents. Through this system, law-making is cyclical. Lawmaking bodies pass statutory laws, and judges set precedents by applying those laws to court cases. Then, lawmakers pass more statutory laws, making the complete circle.

Texas is one of the few states that recognizes a common law marriage within its statutes. Specifically, The Texas Family Code outlines the requirements for a common law marriage in Sec 2.401 Proof of Informal Marriage.

This means common law marriages have been around for centuries and were considered common law until Texas lawmakers rechristened and codified them as informal marriages in 1970. Just as pencil lead is no longer made of the element lead, Texas common law marriages are no longer common law. The term has simply stuck around.