The issue of common law marriage usually comes up when one party is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party wants to be married, it is usually just best to follow the KISS principal and "fagetaboutit".
In those cases where one side is trying to claim some property interest from a "martial estate", the first issue your attorney must deal with is: "was there a marriage?"
Under the Texas Family Code, you can have a court declare that a marriage exists if you can produce a written declaration of marriage signed by both parties. I can't imagine a real life scenario where this would happen, but if you can think of one, then I'd love to hear about it. I mean, afterall, if you went through the trouble of drafting a "declaration of marriage" wouldn't you just get a marriage license?
The much more "common way" for a "common law" marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:
- The parties agreed to be married;
- they lived together as husband and wife;
- they represented to others that they were married.
Usually the last element of "represented to others that they were married" is the element that is contested. Evidence of a holding out to the public that you are husband and wife is usually the thing that requires a collection of evidence- one way or the other.
Remember that once established, the "common law" marriage is just a binding and valid as the formal, ceremonial kind.
UPDATE: SAME SEX COMMON LAW MARRIAGES
An interesting new twist on this topic is how the recent Supreme Court Case on Gay Marriage affects Texas Common Law Marriages. The language of the Texas Statue clearly states that a common law marriage is only recognized between a man and a woman. With the Supreme Court declaring such distinctions as unconstitutional, where does that leave Texans who claim a common law marriage? Some legal experts claim that the Supreme Court case merely strikes the language out of the Texas Family Code that includes language that restricts it to a "man and a woman". Many other commentators however have declared that the entire Texas Law on Common Law Marriage is struck down by the Supreme Court case. If that is true that means that thousands of Texans who thought they were married under common law are no longer married! This very issue is being taken up by Federal Courts in Texas and we will have to wait on the results.