In Texas, a marriage relationship can be created either through a (1) ceremonial process, (2) an informal or “common law” marriage relationship, or (3) marriage by proxy. Once a marriage relationship is created, it’s presumed to be valid. This presumption of validity applies to every form of marriage, whether ceremonial or informal, and applies whether the marriage was entered into in Texas, another state, or another country. Tex. Fam. Code § 1.101. Unfortunately, many marriages nowadays eventually lead to divorce. Whether a couple has been married for 3 years or 30, wed in a church, in a common law marriage or are a same-sex couple whose marriage is now recognized, the same rules typically apply to all who decide to divorce in Texas. There are several ways to go about the process of getting divorced. A couple may decide that they want to go through litigation, or they may decide to do everything outside of court in a collaborative divorce process. A less formal approach toward divorce is called a “kitchen table” settlement, where the parties come to an agreement without any outside assistance. Lastly, parties who typically cannot afford an attorney or whose divorce is fairly simple can employ a “do-it-yourself” approach and divorce on their own. Each possible approach to marriage and divorce is discussed in more detail below.
A ceremonial marriage is the traditional marriage that one thinks of and that complies with the statutory requirements listed in Family Code for obtaining a marriage license and participating in a marriage ceremony. This is the most common form of marriage in Texas. To enter into a ceremonial marriage, a person must obtain a marriage license and voluntarily participate in a marriage ceremony. First, individuals who want to get married must get a marriage license from the county clerk of any county in Texas. A person who is 18 years or older can get a marriage license. There are ways that a person under the age of 18 can get married in Texas, but it’s best to consult an attorney in that situation. In Texas, a person cannot get a license to marry a relative, a person currently married, and a person that has been divorced within the last thirty days. Generally, a person who has recently been divorced in Texas cannot remarry for thirty days after the divorce was signed. As of 2015, same sex marriage is allowed.
Common Law Marriage
A valid common law marriage in Texas, also called informal marriage, is a legal marriage where individuals become spouses without getting a marriage license and having a marriage ceremony. In Texas, there are two ways to establish a common law marriage. A couple may establish a common law marriage by signing a declaration of their informal marriage, which must be certified by and filed with the county clerk. Another way to establish common law marriage is to agree to do the following three things: a couple must agree to be married, after the agreement, the couple must live together as spouses in Texas, and lastly, the couple must represent to others that they are married. All three requirements must be met in order to have a common law marriage. Proving a common law marriage does not depend on how long you have been living together or whether you have children together. Once proved, a common law marriage has no lesser status, which means that it is as legally valid as a formal marriage.
Marriage by Proxy
A proxy marriage is when the marriage is performed despite one party, or both parties of the marriage, are not physically available at the ceremony. There are several reasons why a proxy marriage or wedding may occur. This option tends to be the last resort of sorts when partners want to marry each other but either one or both of them are unable to be in attendance. Generally, some reasons why couples cannot be present include military service or travel limitations. In Texas, Section 2.203 of the Texas Family Code guides proxy marriages. This section states that upon receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter. The 72-hour waiting period after receiving the marriage license still applies in proxy marriages, just like it does in a ceremonial marriage. The second part of the statute states that a person may agree to marriage by the appearance of a proxy appointed in the affidavit if the person is: (1) a member of the armed forces of the United States stationed in another country in support of combat or another military operation; and (2) unable to attend the ceremony. Thus, the individual requesting the proxy by marriage must be serving in the military and stationed outside of the country. In 2014, an outcry of public opinion prompted a change in policy to allow Texas prisoners to get married by proxy, thus prisoners in Texas are now allowed to marry someone on the outside. In most of the United States, marriage by proxy is not allowed, but a small handful of states still permit it, including Texas.
By: Larisa Martirosova
Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.
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