The legalization of same-sex marriage may only be a few months old, but Texas’ informal marriage laws may provide for marriage recognition dating back decades. On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union. Since the rendering of the Court’s ruling, counties across the state of Texas have issued thousands of marriage licenses to same-sex couples. Upon receipt of a marriage license, these couples become eligible to enter into formal marriage. However, Texas also recognizes informal marriage, frequently referred to as common law marriage. Texas allows parties to an informal marriage to hold, as their legal wedding date, the earliest date at which all statutory requirements of an informal marriage were satisfied. What does this mean for same-sex couples who satisfied the statutory requirements before the legalization of same-sex marriage in Texas?
Under the Texas Family Code, an informal marriage may be proved by evidence that: (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabited together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married. (see Texas Family Code 2.401). Upon satisfaction of the second prong, the couple may file a declaration of marriage and list, as their date of marriage, the earliest date at which all requirements were concurrently satisfied. Of course, same-sex couples are now afforded the ability to enter into informal marriage. The question is, however, will same-sex couples who satisfied all requirements of the law be allowed to declare their marriages to a date prior to June 16, 2015?
Initially, it was believed that state officials would hold that same-sex common law marriages could not be dated before June 26, 2015, as same-sex marriages were void ab initio under the law. However, with respect to a recent declaration of marriage filed by a same-sex couple in Tarrant County, Texas, the Texas Department of State Health Services stated that “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.” Accordingly, this Tarrant County couple was allowed to date their informal marriage to 1992.