Common-law marriage in Texas - Elements of Proof

ESSENTIAL ELEMENTS OF AN INFORMAL MARRIAGE IN TEXAS 

It's commonly called common-law marriage, but the legal term is informal marriage. As a further complication, an informal marriage can be made formal by registration, but often an informal marriage is claimed after one of the "spouses" has died, i.e. when an inheritance-dispute arises, or some related matter that is affected by spouse-status. At that time the alleged spouse is no longer available to clarify the matter; not to mention that it's too late for registration. In any event, the issue of whether a legal marriage existed often only becomes an issue once the alleged spouse is deceased, i.e. in the context of a dispute over the estate. 

In a recent case of this nature, one of the two Houston Court of Appeals recites the elements of an informal marriage and states that it is a fact question. That can make for interesting issues at trial, such as the meaning of the deceased's reference to the surviving significant-other as his "old lady". Did that mean wife, or just girl friend? The opinion does not delve into the question of whether "old lady" and "girl" (as in girl friend) can be reconciled, or are mutually exclusive. Nor does it resolve the semantic issues regarding the "old lady" appellation. It does not address whether testimony about what the dead man called his companion is hearsay either, but it does recite the elements of proof, and that's what is important for the purposes of this blawg:   


An informal or common-law marriage exists in Texas if the parties (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) there presented to others that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006); Mills v. Mest, 94 S.W.3d 72, 73 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). The existence of an informal marriage is a fact question, and the party seeking to establish the existence of the marriage must prove the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.-Houston [14th Dist.] 1993, no pet.). An informal marriage does not exist until the concurrence of all three elements. Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).

SOURCE:  FOURTEENTH COURT OF APPEALS - No. 14-13-00816-CV - 1/8/2015

The resolution of the conflicting evidence turned on witness credibility and the weight given to the evidence. It was within the trial judge's purview to resolve these conflicts. Small, 352 S.W.3d at 284; see, e.g., In re Estate of Walker, No. 02-08-00371-CV, 2009 WL 1996301, at *4 (Tex. App.-Fort Worth July 9, 2009, no pet.) (mem. op.). The trial court resolved the conflicting evidence by finding that [person claiming to be the wife] and the decedent had not entered into an informal marriage. After viewing all of the evidence, we cannot say the evidence supporting the trial court's findings is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, the evidence is factually sufficient to support the trial court's findings.