Divorce, Informal Marriage, and the Legal Status of Same-Sex Couples Under Texas Law

October 15th, 2018 by Tad Nelson in Divorce

Texas is one of a minority of states that continues to recognize common-law marriage. The Texas Family Code actually refers to these unions as informal marriages. These are marriages that enjoy legal recognition in Texas despite the fact the couple never obtained a marriage license. Under the Family Code, there are two ways to establish the existence of an informal marriage:

  • The couple signed a written “declaration of their marriage”; or
  • The couple–still defined in the statute as a “man and woman”–agreed to be married and, pursuant to that agreement, lived together and “represented to others that they were married.”

If an informal marriage exists, it still must be dissolved via divorce. This is important because divorce is necessary to resolve certain issues like property division, child custody, and spousal support. Of course, a couple that merely lived together–or even had children together–may not be legally married if they do not otherwise meet the requirements for informal marriage described above.

Texas Courts Remain Unclear on “Retroactive” Application of 2015 Supreme Court Ruling

Texas laws regarding informal marriage and divorce present unique challenges to same-sex couples in the Galveston area who may have been living together prior to the U.S. Supreme Court’s June 2015 decision in Obergefell v. Hodges. In that case, the nation’s highest court held the federal constitution prohibited states from denying marriage licenses to same-sex couples. The Court further held that “same-sex couples may exercise the fundamental right to marry in all States.” In other words, same-sex marriages performed outside of Texas must be recognized by this state. This also means that same-sex couples living in Galveston may file for divorce under Texas law.

But as a recent decision by a Texas appeals court illustrates, the Obergefell decision did not resolve all outstanding legal questions regarding same-sex couples, marriage, and divorce. The Fifth District Court of Appeals in Dallas was asked to grant relief to a man who contesting a divorce proceeding on the grounds he was never legally married to his same-sex partner. Before the trial court, the partner alleged he was in an informal marriage with the petitioner. The petitioner, however, said the relationship ended prior to June 2015–i.e., before the Supreme Court’s ruling in Obergefell–and that decision should not be “applied retroactively with respect to informal marriages.”

The trial court denied the petitioner’s motion to dismiss on these grounds. The Court of Appeals subsequently denied the request for extraordinary relief–known as a writ of mandamus–holding there was no “abuse of discretion” by the trial judge. As the Fifth District noted, “The legal question of whether Obergefell is retroactive has not been determined by the Supreme Court of Texas or by the U.S. Supreme Court.” The trial court therefore did not fail to correctly apply the law, as the law remains unsettled on this point. And in any case, the question of whether or not a couple was informally married is one of fact that must be decided on a case-by-case basis.

Get Advice from a Galveston Divorce Attorney

If you are in the process of ending a same-sex relationship, it is a good idea to consult with a qualified Galveston divorce attorney to learn more about how the law may apply to your situation. Contact the Law Offices of Tad Nelson & Associates to speak with a member of our team today. Call (281) 280-0100


Contact Us

  • Brief Description of Your Legal Problem.
  • Using this form for communication with the Law Offices of Tad Nelson & Associates or any individual member of the firm does NOT establish an attorney-client relationship. Time-sensitive or confidential information should not be sent through this contact form.
  • This field is for validation purposes and should be left unchanged.

Call Us Today For A Free Consultation

281-280-0100 Contacting us will only take a moment of your day.
*Attorney Tad Nelson is a Board Certified Attorney.
*Attorney Tad Nelson is AV Peer Review Rated.