Marriage Defined

Texas recognizes two types of marriage: ceremonial and common law. Texas specifically defines a marriage as between one man and one woman. However in 2015 the U.S. Supreme Court, by a 5-4 decision, in the Obergefell v. Hodges case, legalized gay marriage throughout the country. A ceremonial marriage is one peformed in a church or other place by a religious figure or judicial figure. A common law marriage is recognized if the man and woman (or possibly man and man or woman and woman although the Texas statute refers only to "man and woman"): 1. agree to be married, 2. hold themselves out as husband and wife (also called "holding out"), and 3. cohabitate. Contrary to popular belief, living together does not in and of itself create a common law marriage without the other two elements nor is there a time limit after which you become "common law married." Texas law adds a provision that says if a common law married couple does not file for a divorce after two years of separation, they are presumed to not have been married. Because a marriage can only be ended by death or court action (divorce or annulment), once you have established a common law marriage, it is probably the correct practice to file for divorce, no matter how many years of separation occur.
See Texas Family Code Section 2.401

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