law-common-law-marriage | divorce and SAPCR cases from Houston |
COMMON-LAW MARRIAGE - CALLED INFORMAL MARRIAGE
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.1 See Tex. Fam. Code § 2.401(a)(2)
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 existence of the marriage bears the burden of proving 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) (citing Winfield v. Renfro, 821 S.W.2d 640, 645
(Tex. App.—Houston [1st Dist.] 1991, writ denied)).
To establish an agreement to be married, "the evidence must show the parties
intended to have a present, immediate, and permanent marital relationship and that they
did in fact agree to be husband and wife." Eris, 39 S.W.3d at 714; Winfield, 821 S.W.2d
at 645. A proponent may prove an agreement to be married by direct or circumstantial
evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). The testimony of one of
the parties to the marriage constitutes some direct evidence that the parties agreed to be
married. Eris, 39 S.W.3d at 714.
Cohabitation need not be continuous for a couple to enter into a commonlaw marriage. See
Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987,
no writ).
But an agreement to be married and cohabitation are not enough to prove an
informal marriage. "The cohabitation must be professedly as husband and wife, and
public, so that, by their conduct towards each other, they may be known as husband and
wife." Grigsby v. Reib, 153 S.W. 1124, 1130 (Tex. 1913).
The statutory requirement of ―presenting to others is synonymous with the
judicial requirement of ―holding out to the public.‖ Lee v. Lee, 981 S.W.2d 903, 906
(Tex. App.—Houston [1st Dist.] 1998, no pet.). ―Holding out‖ may be established by the
conduct and actions of the parties. Id. Occasional introductions as husband and wife are
not sufficient to establish the element of holding out. Id. at 907; Flores v. Flores, 847
S.W.2d 648, 652, (Tex. App.—Waco 1993, writ denied); see also Ex parte Threet, 333
S.W.2d 361, 364 (Tex. 1960) (evidence that couple was introduced as husband and wife
to a few friends was no evidence that they held themselves out as married).
Whether the evidence is sufficient to establish that a couple held themselves out as
husband and wife turns on whether the couple had a reputation in the community for
being married. Eris, 39 S.W.3d at 715; see also Danna v. Danna, No. 05-05-00472-CV, 7
2006 WL 785621, at *1 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem. op.) (a
―couple’s reputation in the community as being married is a significant factor in
determining the holding[-]out element‖), quoted in Smith v. Deneve, 285 S.W.3d 904,
910 (Tex. App.—Dallas 2009, no pet.); Giessel, 734 S.W.2d at 31 (holding that couple
held themselves out as married when they had reputation in community for being married
even though they had kept marriage secret from a few family members). Proving a
reputation for being married requires evidence that the couple ―consistently conducted
themselves as husband and wife in the public eye or that the community viewed them as
married.‖ Danna, 2006 WL 785621, at *2.
The act of one of the parties to an alleged common-law marriage in celebrating a ceremonial
marriage with another person, without having first obtained a divorce, tends to discredit the first
relationship and to show that it was not valid. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166
(Tex. 1981); Flores, 847 S.W.2d at 652
COMMON-LAW MARRIAGE CASE LAW FROM HOUSTON COURTS OF
APPEALS
Baqdounes v. Nazir (Tex.App.- Houston [1st Dist.] Jan. 29, 2009)(Hanks)(informal marriage, common law
marriage, collateral attack on prior divorce decree that omitted SAPCR re one child born during the
marriage, void vs. voidable judgment), paternity and nonpaternity)
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-07-01102-CV Selene Lara Mateos Baqdounes v. Nazir Baqdounes
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York
Quinn v. Milanizadeh (Tex.App.- Houston [1st Dist.] Apr. 24, 2008) (Higley) (divorce law, common law
marriage, waiver of objection to associate judge, conformity of judgment with pleadings)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Nuchia, Hanks and Higley
01-07-00489-CV Tyrone Michael Quinn v. Shaleh Rene Milanizadeh
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster
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