Common Myths about Common Law Marriage
by Charla Bradshaw

It is not uncommon in today’s society for unmarried couples to live together. They often combine their resources and may even purchase property together. Many unmarried couples who live together think they have a special legal relationship by virtue of living together, but this is not the case. And for some, they are afraid of common law marriage.

There are many myths about common law marriage. One of the biggest myths is that living together automatically means a couple is common law married. It takes more than living together to have a common law marriage. To have a common law marriage, the couple must first agree to be married. Second, after the agreement to be married, they must live in Texas as spouses. And third, they have to represent to others that they are married. Once the couple breaks up, then within two years of the date a couple separates or ceases living together, one of them must file for divorce or it is presumed that the parties did not agree to be married.

There are no certain facts that make a common law marriage. Every case must be evaluated on the facts of that case. The biggest fight is usually over whether the couple ever agreed to be married. The other fight is over whether they held out to others that they were married. Interestingly in Texas a jury can decide if a couple is common law married.

So, how can couples living together protect themselves from a possible common law marriage fight, and/or a fight over property? One possibility is for the couple to enter into a Non-marital Cohabitation Agreement. This type of agreement is a contract between the couple. There is no specific statutory authority for this type of agreement. Therefore, these agreements are generally governed by basic contract law. And, with regard to property, by Texas property law.

This type of agreement could be made by unmarried couples who live together and want to make it clear, by contract, that they are agreeing that they are not married under any circumstances. And, who wants to have agreements with regard to their property? Such an agreement is simply a contract between two individuals. It is yet to be seen whether these agreements will be enforced, but a written contract may be better than no agreement. Another possible benefit for this type of agreement is for the couple to have a clear understanding of how things will work between them.

Some examples of topics that we usually see in Non-marital Cohabitation Agreements are as follows:

•  An agreement not to be married under any circumstances
• That neither person will hold out to others as being married to the other person
• They agree not to be married on any future date
• No actions by either party could be interpreted as or result in creating a common law marriage for example purchasing a ring, using the other person’s name etc.
• Any future marriage between them must be by formal ceremonial marriage
• Who owns what property
• Property purchases together in the future
• Payment of debt existing at the time of the agreement and in the future
• Future business transactions
• Payment of household, living and personal expenses
• Waiver of any type of support from the other person
• That neither person will inherit from the other person

Couples should understand that the legal implications of buying property together are just like any other people buying property together, and that property law, and possibly a contract between the couple, rather than family law, will most likely apply. For those that are married, State law regards any property acquired by a married couple during the marriage as community property, and in the event of a divorce, the community property is divided. It is highly advised that when living with someone that each person keep separate bank accounts and buy property in their own name using their own money. The point is, a cohabitating couple should not mix their money and property or they are just asking for problems.

We are seeing more of these agreements being executed between couples living together. And, these agreements may be beneficial for later-in-life couples who want to live together, but who wants to make it clear to their families that they are not married and never intend to marry, in order to try and avoid inheritance and estate issues for their families.