Evidence to show a common law marriage
In a fair number of the contested estates I handle, there is a claim of common law marriage. Texas is one of the states that still recognizes common law marriages. Those are marriages that are not established formally through a civil process of obtaining a marriage license and a ceremony.
There is often some confusion that a common law marriage is not a "real" marriage. I often hear people say “we weren't married but we were common-law.” But it is the same thing, once the marriage is established. A common-law spouse has all the rights and obligations of a spouse that was married through a formal civil process.
The three factors to establish a common law marriage in Texas are that:
the parties agreed to be married;
the parties lived together as husband and wife; and
that they held themselves out in the community as husband and wife.
The first two are not difficult to establish, typically. For the most part, the facts in dispute come down to whether or not both persons represented themselves in the community that they were married.
Texas courts say it has to be something more than just every once in a while and it can't be just one way. You have to show that both spouses represented themselves generally in the community as married. There is certain evidence I look for when I'm on either side of the case, either opposing the existence of a marriage or representing someone who's trying to establish it.
The first thing I want to do is talk to various witnesses, including family members, friends. business associates or people at church. I like to affidavits from them establishing whether or not the couple held themselves out as married. Witnesses could testify to their knowledge of whether they were married or whether they were just living together, or whether "she was taking care of him" or something else that would not necessarily be a marriage.
The other important things are documents such as tax returns,. Did they file as single or did they file as married? Deeds are also important if one of the persons has sold property while they were claiming to be married. Did they claim to be unmarried in the deed or in the transfer documents? That would be powerful evidence to contradict a claim of common law marriage.
Important documents could also be just something as simple forms at a hospital or the doctor's office listing a spouse as a contact. Do they list the other person as a contact? Are they described as a friend a companion or are they described as a husband or a wife?
Spouses have special and protected rights in an estate, regardless if a will provides for them. If you are proposing or defending a claim of common law marriage, it is important to contact a Texas lawyer experienced in evaluating common law marriage claims.