Community Property under Common Law Marriage in Texas

Common law marriage is just like regular marriage for legal purposes in Texas, particularly for community property matters.  In Texas, a three part test must be met to be married by “common law”, these three parts are:

1. The man and woman must live together; and

2. They must agree to be married (acts like married couples); and

3. They must tell the world they are married.

Contrary to popular belief, there is no set length of time a couple has to live together to be married under the common law. As soon as all three tests are met, a marriage exists. A couple married in this manner may now record a paper at the courthouse after the fact which will indicate that two people are married. A person who is married by common law means is married for all legal purposes and has community property rights.

Common law marriage can be ended by divorce. However, there is one difference between common law marriage and a regular marriage. In 1989, the Texas Legislature passed a law which states that a person may only claim community property rights from a common law marriage for one year after its breakup. What we do not know is how a common law marriage may break up. Presumably, however, if a couple married by common law “splits the blanket,” and later on one of the two remarries by ceremonial means, then the old flame has one year to claim any community property rights. A remarriage without a divorce for the old common law marriage causes the second ceremonial marriage to be bigamous and void.

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Last modified: February 19, 2007