All it takes is for a couple to make some representation that indicates they are living in a state of marriage; joint bank account, claiming to be married, joint debt, having a child, etc...
You owe me a new keyboard!
And you're right about not really understanding what makes you legally(?) married by common law. I think it's just perpetuated by men who are too chicken to take the plunge and think that's somehow good enough to get their women to STFU.
But still, it's not a big deal and it's not worth the time, effort or expense or having it officially banned when it's not hurting anyone at all.
Furthermore, I speak with battered women on a daily basis. A great deal of them that aren't really common-law married are being told wrongly by police officers that they are in fact common-law married because they either live with or have a child with their abusers. No big deal you say. Except, the cops will refuse to escort the abuser off of the woman's property even though the house/apartment is solely in that woman's name. Rather, the cops say it is a civil matter, so they won't get involved. They are told they need a divorce to kick out their abusers. It's not that the cops are just being lazy (that's part of it), the police are misinformed as well. The woman is usually insistent that they aren't married; but they get the familiar response: "sorry, you live with him, you're married."
nope. They have to have an agreement (preferably in writing) to be married as well. Holding themselves out, or representing themselves, as married is but one factor.
Actually the rules for Common Law Marriages do sound kind of messed up to me.
http://www.co.travis.tx.us/dro/common_law.asp
Why would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating.
you'd be surprised. especially in the valleyWhy would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating.
The Rule of Thumb only applies to your wife, I believe.Why would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating.
You're right, of course. It shouldn't make a difference. However, there's a big difference between the adjudication of an assault case and a domestic violence case.Why would it matter if they were married or not if the dude was beating her? It doesn't make it any less of a crime if they are actually married, common law married, or just dating.
I'll go on the record stating that I have no problem with them doing away with common law marriages.
Why? If anything it makes things more confusing to the people who are actually in one.
(In my opinion) marriage should be an overt act before society.
I feel like Jerry Maguire: "Who's coming with me?"
Don't worry! I'm not going to do what you think I'm going to do, which is FLIP OUT!
Well, you aren't taking my fish. They're still alive after almost a whole year.
I would prefer privacy, but to each his own.
Actually, Oh, Gee, that's not true.
Common law marriage (kind of a misnomer, since it's been codified):
Texas Family Code s. 2.401 Proof of Informal Marriage
(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
But the Texas Supreme Court in Russell v. Russell, 865 S.W.2d 929, 933-33 (Tex. 1993) stated that a common law marriage can be proved by cir stantial evidence and "direct evidence of an agreement to be married is not required; evidence of cohabitation and representations that the couple is married may cons ute cir stantial evidence of an agreement to be married, but the cir stances of each case must be determined based upon its own facts."
In that case, a man and a woman had not made any kind of formal agreement, either written or verbal, to be married, but had told others that they were married and treated their finances as if they were married. The Court found that a "common law" marriage did exist, even without direct evidence of an agreement to be married.
The Russell doctrine has been approved of and cited several times since 1993, as recently as Lewis v. Anderson, decided in August.
At the very least, I can understand why this issue is so confusing and why we need to get to a point where everyone knows what's up, if we're to have it at all.
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Last edited by Oh, Gee!!; 10-26-2005 at 05:14 PM.
I have less of a problem if they sign a contract or make a formal declaration before witnesses (and sign license/contract). Marriage is a contract after all, it should be formalized. (Prenumptual agreement, anyone?)
It shouldn't be that you wake up one morning and you're getting "divorced" because your "wife" claims to be married.
How is this not "an agreement" to be married? Also, according to (2) the agreement needs to be followed by cohabitation in this state and representation to others.
And I didn't say that agreement had to be in writing, but that it is preferable. If there is no writing, the agreement can be proved through cir stantial evidence.
obviously a signed agreement cuts right through the burden of proving an oral agreement.
Last edited by Oh, Gee!!; 10-26-2005 at 05:17 PM.
I guess you didn't read the rest of that post.
That statute has been interpreted by the Supreme Court in a way inconsistent with your original statement. By saying that indirect cir stantial evidence of an agreement to be married (i.e. holding yourselves out to be married) is good enough to establish the common law marriage, that criterion is obviated. In other words, saying that evidence of one factor suffices as evidence to fulfill two factors renders the second factor moot. So, when you say "holding themselves out, or representing themselves, as married is but one factor," that's not always true. As you can see from that case and its progeny, sometimes that factor is the only one that is meaningful.
Actually, without the agreement there is no marriage. The Supreme Court did not do away with this requirement, rather they made it a little easier to prove a non-written agreement b/c most people don't think to memorialize their living arrangements in writing. The other party can still rebut the evidence of the supposed agreement.
Not to belabor this point, which is of course extremely minor, but the Supreme Court did do away with the agreement factor in certain situations...imagine you live with a girl and you tell everyone that you're married. Let's say that you also mingle some assets. Furthermore, you and that girl have never agreed in any way to be married. According to the Russell doctrine, a court should find that you have a common law marriage.
Maybe the best way to explain this is to say that those factors, taken together, are sufficient conditions and not necessary ones. So a written agreement by itself can do it, or cohabitiation and public representation by themselves can do it. What's wrong is to say that all three of those factors must be there in order to prove up a common law marriage. Trust me on this one, I've proved up common law marriages without any kind of agreement before, and haven't been overturned on appeal (at least not yet!)
There are three factors according to the family code: agreement, cohabitation, and representation. All three must be proved by the party claiming that there was a marriage (i.e. the person who wants half of the community assets). The Supreme Court's decision did not change the law, it only made proving one of these factors (the agreement) easier than it should be, imho.
I guess the courts here in Bexar county would disagree with you, but maybe the Texas Legislature wouldn't. I think that if two people are willing to act as if they're married and tell everyone that they're married, the need for an explicit agreement between them is kind of irrelevant. They are functionally married when they do those things, and I'm not sure it's possible to act as if you're married and tell people you're married and somehow not have agreed to be married.
Anyway, why do you think it's so important for the standard to be more stringent for common law marriages?
Even still, without a "declaration of marriage," an agreement still must be proved in court by a preponderance. The Supreme Court didn't change the statutory requirements.
I think it's so easy to either get a marriage licence or file the declaration. Why should we go back in time to figure out whether the couple really agreed to be married or not?
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