Marriage

Question 1

Two Types of Marriages

Answer 1

• Texas recognizes two types of marriages;
  1. Ceremonial Marriages
  2. Informal Marriages (also known as “common-law” marriage even though it is now codified).

Question 2

Ceremonial Marriages

Answer 2

Marriages that are entered into by parties who are free to marry, obtain a marriage license followed by a ceremony (religious or legal) and subsequently return the marriage license signed by the officiant of the ceremony and file it with the clerk’s office.

Question 3

Requirements for Ceremonial Marriages

Answer 3

• Age
• Free to marry
• License
• Ceremony by authorized officiant
• Gender no longer an issue.

Question 4

Gender (Ceremonial Marriage)

Answer 4

• Prior to 2015 a marriage in Texas could only be between a man and a woman.
  In Bexar County your gender was the gender you were at birth.
• In 2015, the United States Supreme Court held that marriage was a constitutional right and required all states to confer licenses to same sex applicants and recognize existing same sex marriages. (Obergefell v. Hodges)
• The Texas Family Code still references marriages are between a man and a woman but Obergefell, DeLeon v. Abbott, and Pidgeon v. Turner all require Texas to recognize same sex marriages.

Question 5

Age (Ceremonial Marriage)

Answer 5

• You must 18 or older to marry in Texas. Only exception is if the court has removed the disability of minority (emancipation).
• Because an emancipation is required and under Texas law emancipations are only allowed for persons aged 16 or 17, the implication is that under no circumstances can someone younger than 16 obtain a marriage license or be party to a marriage. Tex. Fam. Code § 31.001(a).
• Prior to 2017 minors could marry if they obtained parental consent, emancipated by court order, or showing that an earlier marriage to another person had been dissolved (!)

Question 6

Who Is Not Free to Marry (Cannot Obtain Marriage License)

Answer 6

• Persons under the age of 16
• Relatives
• Currently Married Applicants (subsequent marriage is void if you are married to someone else)
• Divorced within 30 days (can file for equitable motion for new trial)

Question 7

Relatives Cannot Marry Each Other

Answer 7

• Parties to a marriage cannot be related to each other in any of the following ways:
• Ancestor/Descedent by blood or adoption
• Brother or sister whether whole or half blood or by adoption
• Uncle / Aunt
• Nephew or niece, whether by whole or half blood or by adoption
• current or former step-child or step-parent
• First cousin whether by whole or half blood or by adoption

Question 8

Marriage License

Answer 8

• Generally, must apply in person with County Clerk’s office
• Exceptions: appearing remotely; absent applicant (notarized affidavit of absent applicant required); or both applicants absent (typically only servicemembers stationed abraod)
• Must be obtained between 72 hours (waiting period) and 89 days before the marriage ceremony.
• Waiver of 72 hours waiting period; DOB; Premarital education course completed; good cause (must have a hearing before a judge)
• Must bge returned and filed with County Clerk within 30 days of ceremony.

• You cannot marry within 72 hrs of receiving marriage certificate
• 72 hour waiting period can be waived if couple completes marriage education course

Question 9

Requirements for Informal Marriage Tex. Fam. Code §2.401 (A)

Answer 9

• Parties must meet requirments for a valid marriage (age, nonrelatives, not already married, etc.
• Requirements;
  1. An agreement to be married (presusmed but becomes a rebuttable presumption that there was NO agreement to marry if an action is not commenced within 2 years of seperation);
  2. Cohabitation as a husband and wife; and
  3. Holding Out
• Once all three are present at the same time, informal marriage is established.
• Parties can choose to apply for a “Declaration of Informal Marriage” which is a proof of a legal marriage filed in the county clerk’s office.

Same sex couples CAN be common-law married.

Question 10

Informal Marriage

Answer 10

An informal marriage is one that when entered into did not comply with the steps for a ceremonial marriage but instead met three statutory requirements.

Question 11

Informal Marriage History

Answer 11

Informal marriages have existed in Texas since at least 1847 and were originally recognized through the common-law, which is why they were referred to as “common-law marriages” the term is still used to describe an informal marriage even though the requirements were codified in 1997 in **TFC 2.401 (a)(2). **

Question 12

Duration of Marriage

Answer 12

• Marriages (ceremonial and informal) in Texas last until
  1. it is dissolved by death of one ofthe parties to the marriage
  2. A court renders a divorce through valid court order; or
  3. A court renders a marriage void (or annulled) through valid court order.
• There is NO common-law divorce, divorce is always formal.

Question 13

Putative Spouse

Answer 13

• A putative marriage is one where at least one party entered into the marriage in good faith, but the marriage is invalid because of some legal impediment (consanguinity, existing marriage). Can be ceremonial or informal.
• Most common cause of putative marriages are undissolved prior marriages.
• Although marriage is invalid, law protects an innocent spouse who acted in good faith by extending them the same rights a lawful spouse would have had during the putative marriage.

Question 14

Requirments of Good Faith

Answer 14

• Presumed if innocent spouse was unaware of legal impediment
• Once spouse becomes aware of legal impediment, good faith will depend on reasonableness of innocent spouse to ignore information and not investigate further.
• Requires investigation

Question 15

Duration of Putative Marriage

Answer 15

• Lasts until elements of putative marriage exist (legal impediment remains and at least one spouse is unaware of impediment).
• Impediment removed:
  A putative marriage ends when impediment is removed (e.g., death of prior legal spouse) and putative marriage is still intact. Becomes valid the moment impediment is removed.
• Impediment discovered:
  A putative marriage ends when innocent spouse learns of the impediment and is no longer acting in good faith. If parties remain in “putative marriage” the relationship no longer has protections of innocent spouse and becomes a meretricious relationship.

Question 16

Rights and Duties of Spouses

Answer 16

Spouses (including putative spouses) have a right to:
1. Community property of the marriage;
2. Right to support; and
3. Right to maintenance.

Question 17

Meretricious Relationship

Answer 17

• Relationship when couples who are in a sexual relationship cohabitate and the relationship is not a valid ceremonial marriage, valid informal marriage or a putative marriage. Or, as people my grandmother’s age would say “living in sin.”
• Not a legal marriage and not treated as such.
• No community property rights are created
• Can still seek division of property based on any other legal theory (constructive trust, partnership or joint ventures, etc.)

Question 18

Proof of Elements for Informal Marriage

Answer 18

• Agreement is implied if the two other elements are present. After two years of separation, an agreement must be proven. Proof can be circumstantial—does not need to be direct evidence.
• Cohabitation-no minimum time limit required but must occur in Texas after the parties agreed to be married and should be continuous.
• Holding out-must be public (not private), need not be verbal, in other words, entering into leases as husband and wife or claiming married filing jointly in income tax returns can prove holding out.

Question 19

The Ceremony (Ceremonial Marriage)

Answer 19

• Ceremony can be conducted by any of the following:
  1. Licensed or ordained Christian minister or priest;
  2. A Jewish rabbi;
  3. Person who is an officer of a religious organization authorized by such to perform marriage ceremony;
  4. Justice of SCt., CCA, COA; Judge of: district, county, probate court; JPs; Retired judges; Federal Court Judge or Magistrate
• If person unauthorized, marriage is still legal if: (1) person appeared to have authority; (2) party entered into marriage in good faith; (3) party continues to act as married, and (4) marriage is not prohibited by any other factor (age, relation, etc.)