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Amber E.
Amber E., Family Law Attorney
Category: Family Law
Satisfied Customers: 1464
Experience:  Experienced practitioner in family law, including divorce, custody, and domestic violence cases.
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My brother has lived in Texas with a woman for 15 years. She

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My brother has lived in Texas with a woman for 15 years. She wears a wedding ring, calls Him her husband, and they have car insurance together, listed as "married" for the discount.
They are breaking up.
do they need a divorce?
can he marry someone else?
she says she will not sue Him for divorce or go after Him in that way. does that matter? even if she does not file a complaint, would it be illegal if he got married?
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.
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Customer: replied 3 years ago.

This couple never agreed they were married. They only said they were to co-workers and FB for appearances sake. they did not think of each other as married.

would this make them not married under the rules?

yes, they told people they were married, she wore a ring, they bought car insurance and listed as married, but only for the discount.

the number one rule says they have to agree they are married, right? so if they never agreed to, it is not common law?

If the parties never agreed to be married, then yes under the law there is no common law marriage.

However, when the parties give the public impression that they are married, it could make it difficult for one party to deny if the other were to some day claim otherwise.
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