There has been much debate amongst attorneys in Texas regarding the state of common law marriage as it relates to same-sex couples. Some attorneys believe that the ruling by the United States Supreme Court on June 26, 2015 extends to common law marriage whereas others believe that it does not. So what has happened since June 26, 2015 with respect to common law marriage and same-sex couples?
On June 30, 2015 in a wrongful death action attorneys argued that a woman should be allowed to assert a claim for the wrongful death of her wife. The attorneys argued that the two women were common law married. The Court held that the decision on June 26, 2015 extended to common law marriages and therefore the woman was allowed to bring her case. Typically in wrongful death cases you have to be related to the person and for same-sex couples it was not enough that you had been together for a long time.
What about in family law cases? So far that has yet to be determined. The United States Supreme Court held that the states must allow same-sex couples to marry. Not every state has common law marriage nor is every state required to have common law marriage. The Texas Family Code says to have an informal marriage (common law marriage) you either have to sign and file a declaration of the marriage or the more common method:
“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.”
Based on the plan language of the code it states that it must be a “man and woman”. Some will argue that should be removed and should say two people or something similar. Perhaps. The code further states that they must live together as “husband and wife”. Now I know that if I referred to my partner as my husband she would be upset with me. I am willing to bet that many same-sex couples probably referred to each other as “husband and husband” or “wife and wife”. So again this would not meet the elements of a common law marriage since they did not refer to each other as “husband and wife”. Having said all of this, so far to date I have not heard about a case for a divorce of a same-sex couple in a common law marriage. I suspect that it will depend on the Judge and the county in which you file for divorce as to whether a court will allow this or not.
With so many areas up in the air with same-sex marriage, I suspect that this one will take some time to be tried out.