The ruling of the Supreme Court of the United States in Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), recognized the constitutional right of all persons to marry another consenting adult of his or choice regardless of the sex or sexual orientations of the parties.

Our Family Code read and still reads (unfortunately) that:

(a) In this section, “civil union” means any relationship status other than marriage that:

(1) is intended as an alternative to marriage or applies primarily to cohabitating persons; and

(2) grants to the parties of the relationship legal protections, benefits, or responsibilities granted to the spouses of a marriage.


(b) A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.
(c) The state or an agency or political subdivision of the state may not give effect to a:

(1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or

(2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.

Tex. Fam. Code Ann. § 6.204 (West). This rule is now preempted as unconstitutional under Obergefell and De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015), but its demise does not resolve all questions that touch upon it.

Are Same-Sex Couples Who Separated Still Married?

What happens to persons who legally married in another State while a resident of Texas, or subsequently moved to Texas, prior to Obergefell and ceased living together? Texas refused to recognize their marriage prior to that ruling and, as a consequence, would not allow them to file for and obtain a divorce?

Our laws state that once a person is married by civil marriage or informal marriage, there is no informal divorce. They may only divorce if that divorce is rendered by a court of law.

This has a serious implication for separated same-sex couples in Texas. Since the State previously denied their right to divorce, but also requires a divorce to dissolve a marriage, those persons would still be regarded as married under the law absent the construction of some new statute to address this problem. This problem is also applicable to parties who may have informally married in Texas prior to Obergefell but then been unable to divorce.

Informal (“Common Law”) Marriages

Title 1, Subtitle A, Chapter 2, Subtitle E of the Texas Family Code, titled “Marriage Without Formalities,” discusses how a person may marry in Texas without the need for a civil ceremony and completion of marriage license. These informal marriages, often called common-law marriages, have specific requirements that must be met to be found valid. Those requirements are:

(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1) a declaration of their marriage has been signed as provided by this subchapter; or

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.


(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
(c) A person under 18 years of age may not:

(1) be a party to an informal marriage; or

(2) execute a declaration of informal marriage under Section 2.402.


(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

Tex. Fam. Code Ann. § 2.401 (West).

So, what happens if the conditions of (a)(2), above, existed prior to the Obergefell decision while Texas still applied the Defense of Marriage Act discussed toward the beginning of this post?

Obergefell and De Leon both make clear that Texas must recognize legal same-sex marriages that occurred in another state and allow those marriages to occur in Texas, and to recognize those marriages. However, what remains unclear is what happens when a same-sex couple living in Texas decides to divorce and one alleges the parties were informally married prior to the Obergefell decision.

Suppose two people cohabitated and represented to others they were married. Will, or can, a court in Texas conclude that it was possible for the parties to have an agreement to be married (satisfying the third and final element of an informal marriage) at a time when the law said they could not validly marry? Agreement is a form of consent and intent where the court has to find that each party consented and intended to be married to the other. If it was illegal to be married as a same-sex couple at that time, can a person have the required mental state to consent or intend (to have an agreement) to be married in opposition of the law?

It is the opinion of this author that the courts must recognize those marriages as valid or the State would again be violating the Equal Protection and Due Process rights of its citizens. However, this author would not be surprised if different courts and appellate districts reach contradictory conclusions on this hypothetical that will ultimately require the matter be decided by the Supreme Court of Texas or of the United States.

One possible way to address this issue for same-sex couples who informally married and are still together is to sign a declaration of informal marriage and file it with the appropriate county official. This will, at a minimum, provide clarity as to the intent of the parties and provide the proponent of the informal marriage the equitable argument of estoppel to try and prevent the other party from denying the existence of the marriage or original date of the marriage.

Where Are We Now?

The most harmful vestiges of Texas’ discriminatory adoption of the Defense of Marriage Act are in the past but, as one can see from reading the above, the provisions of that act still reach into the present and create uncertainty in the law about the treatment of same-sex marriages in this State. If you have any lingering questions about how some of the above issues might affect you, please contact our firm to schedule a consultation with one of the attorneys at Skillern Firm PLLC.

Tristan H. Longino