Q. do they need a divorce? can he marry someone else?
Whether or not a divorce is necessary depends on whether the couple is "common law" married under Texas law, despite a lack of formalities or signed declaration and registration of informal marriage. Living together for a certain period of time does not automatically mean that one is in a common law marriage
, nor does the unilateral opinion of one party. Rather, there must be compliance with the three-part test: to have a common law marriage in Texas, the couple must: 1) AGREE to be married, 2) LIVE together in Texas as husband and wife, and 3) TELL other people that they are married.
For example, if a man and woman verbally agree to be married, then sign an apartment lease together as husband and wife, and live together in the apartment, then they have a common-law marriage. If only one party held herself out as married and the other did not, whether the relationship would be deemed a common-law marriage would depend on whether the other party did anything to correct the impression that the couple was married. If he did, then he may have some argument that he had not agreed to be married. But if he knew what was going on and did nothing to correct the impression that they were married, then he may well be in a common law marriage under the law.
If based upon this information a party finds that he is in fact in a common law marriage and no longer wishes to be married, then that marriage can be terminated by a divorce. Getting a divorce is the same as with other marriages except the couple must first prove to the court that they were married.
Nevertheless, the deadline to have a common-law marriage recognized begins to run from the time a couple separates, that is, from the time the couple stops living together. Generally, a couple has two years after they stop living together to ask a court to recognize their common law marriage. If more than two years passes after the couple stops living together, the court will assume there was no agreement to be married. (The marriage can still be proved, but it will be more difficult to show.)
The above referenced law is articulated in Tex. Fam. Code Ann. § 2.401, and I have provided a web address to the law for your review.
Unfortunately, we cannot tell the couple what to do, because that would constitute legal advice and we are forbidden from providing advice. We are only able to provide legal information, such as that above, but if there is still a question of what they "should do" then they need to get that advice from a local attorney. If they are unable to afford one, they can contact their local legal aid office for free advice and counsel, and representation if needed.