Other Than Homicide1 Is There Such A Thing As Common Law - TopicsExpress

Other Than Homicide1 Is There Such A Thing As Common Law Divorce? By Charles E. Beachley III Apparently not. When the Legislature fixed2 §2.40l(b), Texas Family Code, to raise a rebuttable presumption one element (intent) of the three elements of marriage without formalities3 was not present, many of us thought that this gave Texans a common law divorce procedure (living apart for two years) to match the common law marriage. That’s what happens when we don’t think things through. Once a marriage is formed, it is only terminated by decree or death. This is as true of informal as of formal marriages. In McMaster v. Small4 , woman claimed an informal marriage and, when the jury found in her favor, man5 appealed and got it reversed on the holding out element. On remand, man filed a no-evidence Motion for Summary Judgment based on there being no evidence of holding out within the past two years.6 That Motion for Summary Judgment was granted and this time the woman appealed. The Appeals Court reversed and remanded, saying: Because there is no such thing as a common law divorce in Texas, a common law marriage, “like any other marriage, may be terminated only by death or a court decree.” Claveria’s Estate v. Claveria, 615 S.W.2d 164, 167 (Tex.1981). Even the spouses’ subsequent denials of the marriage do not undo the marriage. _______________________ 1 “Actually, that would be a criminal law divorce.” -Larry Chamberlin 2 For two years, Texas had a class of marriages indissoluble except by death because any suit involving a marriage without formalities (“common law marriage”) had to be brought within a certain time after the separation. 3 To prove an informal Marriage, i.e., a common law marriage, the proponent must prove that the couple, who might have been lawfully married formally (1) agreed to be married; (2) lived together as husband and wife in Texas (cohabitation, the easiest element to prove or disprove); and (3 in Texas, represented to others that they were married (also known as “holding out to the public”). 4 14-13-00069-CV, 2014 WL 950471 (Tex. App. Houston 14’” Dist. Mar. 11, 2014) 5 Who had already acquired a new wife during the separation 6 Indeed, man pointed to an 8-year period.

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