Topic: Marriage Laws in
Texas
How Do I Get
Married?
In Texas, a man and woman desiring to get married must
obtain a marriage license. This license
is valid for 30 days from the date of issue.
However, no license is required for a common law marriage, and a
ceremonial marriage is valid even without a marriage license.
72 hour waiting period:
The parties must wait 72 hours between the date of the marriage and
issuance of the license. However, a
court may waive this waiting period; this is also inapplicable if one of the
parties is in the armed forces.
Thirty days after divorce:
If one of the parties has recently divorced, they must wait at least 30
days after that divorce decree has been issued before entering into the new
marriage. However, a court can waive
this requirement; parties can also remarry at any time.
Parental Consent Requirement: In Texas, if either party is
under the age of 18, a marriage license can only be issued with parental
consent or a court order. The
application must be made within 30 days after the consent is given. Furthermore,
an applicant under age 16 is permitted to marry only if a court order is
obtained. The court will grant this
permission if it believes marriage to be in the best interest of the child.
While common, a ceremony is not required for a marriage to
be valid.
What is a Common
Law Marriage?
Texas recognizes what The Family Code refers to as “informal
marriages,” also known as common law marriage.
There are three steps to establish a common law
marriage. The parties must show that
they a) agreed to be married b) lived together in Texas as husband and wife and
c) represented to the public that they were married. The parties can also execute a “Declaration
of Informal Marriage.” While not
required, this declaration is an alternative to a ceremonial marriage.
As to the matter of whether the parties “agreed to be
married,” occasional references to “my wife” or “my husband” do not suffice;
similarly, as the court stated in Flores
v. Flores, “non-marital cohabitation is far more common than it once was
and…evidence of a tacit agreement to marry must be weighed more carefully than
in the past.” Until 1989, if it was
proved that a couple cohabited and represented to others that they were
married, the state provided that the agreement to be married could be
inferred. This provision was deleted in
1989: the Supreme Court has ruled that proof of the agreement may be direct or
circumstantial evidence.
As is the case with ceremonial marriages, a common law
marriage is not valid if there is an impediment to the marriage. (An example of this would be if one of the
parties is already married.)
Restrictions on
Marriage in Texas
In Texas, same-sex marriages are not recognized. Similarly, persons of the same sex who enter into
a civil union or similar relationship in another state are not recognized as
spouses in Texas.
The “Marriage-Like” relationship doctrine has also been
rejected pursuant to the holding in Ross v. Goldstein, where the court stated
“same-sex couples must address their particular desires through other legal
vehicles such as contracts or testamentary transfers…without the existence of
any legal status identical or similar to marriage.”
What is a Void
Marriage?
Three circumstances make a marriage void in Texas:
consanguinity, bigamy, and one of the parties being under the age of 16 without
a court order.
As to consanguinity, a person cannot marry a sibling, a
descendant or ancestor, a nephew or niece, an aunt or uncle, a first cousin, or
a stepchild. Marriage to a first-cousin
is not void but is now prohibited in Texas.
The consanguinity prohibition also applies to relation by adoption; as
for siblings and nephews/nieces, the prohibition also applies to relations of
the half blood.
With respect to bigamy, a marriage is void if either party
is already married. Once the prior
marriage is dissolved, the marriage becomes valid by operation of law if since
that time the parties have held out to the public that they are married and
have also lived together.
Finally, if a party to a marriage is under the age of 16 and
there is no court order granting permission to marry, the marriage is void
regardless of parental consent.
What are types of
Voidable Marriages?
If someone between ages 16 and 18 has married without
parental consent or a court order, a suit can be brought for annulment. This sort of annulment is not automatic and
is at the discretion of the court.
If at the time of the marriage, a) the petitioner was under
the influence of alcohol or narcotics and did not have capacity to consent b)
there was permanent impotency on the part of either party—for either physical
or mental reasons—and the petitioner was unaware of these circumstances or c)
the other party used duress, fraud, or force.
Also, a suit to annul is authorized on the grounds of mental
incapacity if the parties did not voluntarily cohabit after the incapacity
became evident.
Furthermore, a suit to annul is authorized if there existed
a concealed divorce within thirty days of the marriage. The authorization is only effective if a
reasonably prudent person would not have known of the concealed divorce. This suit must be brought within one year
after the date of the marriage.
Additionally, annulment may take place if the marriage
happened within the 72 hour “cooling off” period following issuance of the
license. The suit must be brought within
30 days.
Finally, a marriage can be annulled if the decedent did not
have sufficient mental capacity to consent.
However, for this to apply, the marriage must have taken place within
three years of the decedent’s death, and the action for annulment is filed
within one year after the death.
What Rights and
Duties Arise from the Marriage Relationship?
To begin, Texas law applies to people who are married
elsewhere but are domiciled in Texas.
Even if the marriage took place elsewhere, Texas laws governing the
marital relationship, including marital property laws, apply from the time a
party establishes domicile in Texas.
Example: Assume that Ali and Salma were married in Louisiana
in 1989 and they moved to Houston, Texas in 1995. As to the marital rights in the property
acquired by Ali and Salma while they were domiciled in Louisiana, Louisiana law
applies. However, the moment Ali and
Salma enter Texas with the intent to permanently reside within the state, both
of their earnings thereafter are to be considered community property.
By law, each spouse has the duty to support the other
spouse. If a spouse fails to discharge
this duty of support, he/she is liable to any person who provides necessaries
to the spouse to whom support is owed.
In other words, each spouse is liable for the other spouse’s contracts
for necessaries.
By Rehan Alimohammad
Rehan Alimohammad is the Partner
at Alimohammad & Zafar, PLLC in charge of immigration, and tax law. He
volunteers his time with several organizations in the Houston area and has
written hundreds of articles on immigration topics. He received his undergraduate
degree from the University of Texas in 1996, his CPA in 1998 and his law degree
from the University of Houston in 2001.
Disclaimer: This article is not meant as specific advice
regarding a person’s individual case. An
attorney should be consulted. This
article does not create an Attorney-Client relationship.
