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Same-sex common-law marriage and divorce

On Behalf of | Sep 7, 2021 | Same Sex Family Law Issues |

Texas is one of the few states that recognize common law marriage. This type of marriage provides couples with all the legal aspects of marriage.

However, to enter into a common-law marriage, the Texas State Law Library explains a couple must meet three criteria.


To have a common-law marriage, a couple must represent themselves as a married couple, agree to the standing as a married couple and live together in Texas as a married couple. The law applies to all couples, including same-sex couples in the same and equal way.

It is possible for a couple to be in a common-law marriage without any intention to do so as long as they meet the criteria. In addition, same-sex couples may meet the definition if they met the criteria prior to the legalization of same-sex marriage.


The State Bar of Texas explains the law does not distinguish between formal marriage and common-law marriage. What this means for couples wishing to divorce is a common law marriage must go through the same dissolution process as a traditional marriage.

The process is exactly the same. A couple cannot dissolve the legal aspects of their relationship simply by walking away as if they do not have a common-law marriage. However, the law is complex. A person may need to prove they have a common law marriage or work to disprove they have one when it comes to ending the relationship.

Same-sex couples get all the same rights under the common law marriage statute, which also includes how they must end the relationship through a divorce.