Common-Law Marriage

A challenge to a common-law marriage can come from a variety of sources. For example, an insurance carrier or PENSION provider may contest a common-law marriage when one spouse claims benefits by virtue of the marriage. Often, it is one of the purported spouses who challenges the existence of a common-law marriage.

In Flores v. Flores, 847 S.W. 2d 648 (Tex. App. Waco 1993), Peggy Ann Flores sought to prove that she had been married by common law to Albert Flores. Peggy and Albert were married in a ceremony on July 18, 1987, and divorced on March 9, 1989. They continued to live together until November 1990, when Albert moved away to live with his girlfriend, Lisa. Albert and Lisa were married on January 1, 1991.

Peggy filed for a second divorce from Albert on January 31, 1991. In the same proceeding, she applied for custody of their child, Joshua, and CHILD SUPPORT payments from Albert. The County Court, Brazos County, found that a common-law marriage had existed between Peggy and Albert following their 1989 divorce. The county court granted the second divorce and ordered custody and child support payments to Peggy. Albert appealed, arguing in part that there was insufficient evidence to support a finding both that Peggy and Albert had agreed to remarry and that Peggy and Albert had represented to others that they were married.

The Court of Appeals of Texas, Waco, agreed with Albert. The court of appeals opened its opinion by listing the important factual background. According to Peggy's testimony at the 1991 divorce proceeding, she had considered herself married to Albert after the 1989 divorce, and Albert had, on one occasion, introduced her as his wife after the 1989 divorce. Peggy's employer, Irma Ortega, testified that she did not know of the first divorce, that Albert sent gifts and affectionate notes to Peggy, and that Peggy kept a picture of Albert and Joshua at her workplace. Relatives of both Peggy and Albert testified that after the 1989 divorce, the relationship continued much as it had before.

Other testimony revealed that on a visit to a hospital after the divorce, Peggy told hospital personnel that she was single. Albert and Peggy signed a lease together that did not specify their relationship. Peggy used Albert's credit cards, and Albert paid the rent and other bills. They also maintained a joint bank account and carried on a sexual relationship.

Albert testified that Peggy had asked him to stay with her until she got "back on her feet." He also testified that he had moved in with Peggy after the 1989 divorce to help her and that he had informed Lisa that he was living with his former wife "and helping her out."

The court of appeals then addressed whether these facts sufficed to establish a common law marriage in Texas. The court said that while the facts must demonstrate cohabitation by the parties, public representations of marriage by the parties, and an agreement to be married, all three elements need not exist simultaneously for a common-law marriage to exist.

On the issue of whether the couple had agreed to be married again after the 1989 divorce, the court acknowledged that such an agreement can be inferred from cohabitation. However, the court warned that cohabitation is more common than it once was and that cohabitation evidence should be weighed more carefully than it has been in the past. After an examination of the record, the court concluded that there was no direct evidence of an agreement between Albert and Peggy to marry. The evidence showing that Albert and Peggy had lived together and shared resources did not compel a finding of an agreement to be married.

Nor did the evidence support a finding that Peggy and Albert had held themselves out as married. According to the court of appeals, one public representation of marriage did not constitute a public holding out. Other evidence offered by Peggy, such as the joint bank account, was insufficient to support public holding out, the court found. Thus, the court of appeals ultimately reversed the judgment of the county court and ordered that Peggy take nothing but child support payments from her suit.