Navigating Same-Sex Relationships and Marriage in Texas: A Legal Overview

The landscape of LGBTQ+ rights, particularly concerning marriage and family structures, has undergone significant evolution. For same-sex couples in Texas, understanding these changes is crucial, especially when it comes to informal unions and the protections afforded by federal law. While Texas has a history of specific legal battles that shaped its current standing, the landmark Supreme Court decision in Obergefell v. Hodges in 2015 legalized same-sex marriage nationwide. More recently, the passage of the federal Respect for Marriage Act (RFMA) in December 2022 has further solidified protections for same-sex marriages, including those established through informal means in states like Texas.

Understanding Common Law Marriage in Texas

Texas is one of the few states that still recognizes common law marriage, also known as informal marriage. This means that a couple can be legally married without obtaining a marriage license or having a formal ceremony. However, this is not a simple matter of living together for a set period. To establish a common law marriage in Texas, three specific requirements must be met simultaneously:

Agreement to be married: Both individuals must have a clear intent and agreement that they are married. This isn't just about intending to live together, but intending to be legally married.
Living together in Texas: After agreeing to be married, the couple must have lived together in Texas.
Representing to others that they are married: The couple must have held themselves out to others (friends, family, community) as being married. This could be through statements, using the same last name, or signing documents as a married couple.

Crucially, there is no minimum duration required for these three elements to exist. However, all three must be present at the same time for a common law marriage to be legally valid. This can be particularly impactful for same-sex couples who may have formed unions before the nationwide legalization of same-sex marriage.

Can Same-Sex Couples Form a Common Law Marriage in Texas?

Absolutely. Texas law does not discriminate based on sexual orientation when it comes to the formation of common law marriages. If a same-sex couple meets the three essential requirements outlined above, they are as legally married in Texas as any heterosexual couple who obtained a marriage license and had a ceremony. The legal date of their marriage is recognized as the earliest date on which all three requirements were simultaneously satisfied.

This raises important questions about the past. Could the beginning of a same-sex common law marriage in Texas pre-date the Obergefell v. Hodges decision? Yes, it could. If a same-sex couple met all the criteria for common law marriage in Texas prior to June 26, 2015, their marriage is legally recognized from that earlier date. This is significant for determining things like:

Property rights: Establishing the date of marriage is vital for classifying property as separate or community property.
Benefits: Pensions, social security benefits, and other employer-provided benefits can be affected by the official date of marriage.
Inheritance: Legal recognition of a marriage date ensures proper inheritance rights.

It's also worth noting that Texas law allows for the registration of an informal marriage. Couples can formalize their common law marriage by filing a Declaration of Informal Marriage with the county clerk. This provides official documentation of their union, which can simplify many legal and administrative processes down the line.

The Impact of the Respect for Marriage Act

The passage of the federal Respect for Marriage Act (RFMA) in December 2022 has provided an additional layer of security for same-sex marriages. The RFMA repeals previous federal laws that defined marriage exclusively as between a man and a woman. Instead, it mandates that any marriage between two individuals that is valid in the state where it was performed must be recognized by all states and the federal government.

What does this mean for same-sex couples in Texas, particularly those in common law marriages?

Interstate Recognition: If you established a valid common law marriage in Texas, and then move to another state that does not recognize common law marriage, your marriage will still be legally recognized in that new state under the RFMA. This is a significant protection against losing legal marital status simply by crossing state lines.
Federal Protections: The RFMA ensures that federal laws that grant rights and benefits to married couples apply equally to same-sex couples, regardless of whether their marriage was solemnized with a ceremony or established through informal means in a state that permits it.

So, to clarify, even if you are in a state that doesn't permit common law marriage, a common law marriage legally established in Texas is recognized thanks to the RFMA.

Addressing Common Misconceptions

It's essential to dispel some common myths surrounding common law marriage:

Living together doesn't automatically create a common law marriage. Simply cohabitating, even for many years, does not satisfy the legal requirements. The intent and agreement to be married, coupled with holding yourselves out as married, are paramount.
Having children together does not automatically create a common law marriage. While children are a significant aspect of many families, the legal requirements for marriage still need to be met.
Informal marriage has the same legal standing as a formal marriage. Once a common law marriage is legally established and recognized in Texas, it carries all the same rights and responsibilities as a marriage solemnized by a license and ceremony. This includes rights concerning property, inheritance, divorce, and spousal support.

The Broader Context of LGBTQ+ Rights in Texas

While this article focuses on marriage, it's important to acknowledge the broader context of LGBTQ+ rights in Texas. The state has seen a complex legislative landscape, with efforts to both advance and restrict LGBTQ+ protections. For instance, while same-sex sexual activity was decriminalized by the Supreme Court's ruling in Lawrence v. Texas, the codification of this into state law has been a subject of legislative debate. Furthermore, recent legislative sessions have seen numerous bills proposed that could impact LGBTQ+ individuals, particularly concerning education and protections in schools, such as Senate Bill 12, which restricts teaching about sexual orientation or gender identity.

It's also worth noting that protections against discrimination based on sexual orientation vary significantly across Texas. While some municipalities have implemented non-discrimination ordinances, a statewide comprehensive ban on discrimination in private employment, housing, and public accommodations is not yet in place for the entire LGBTQ+ population.

The journey for LGBTQ+ equality is ongoing, and understanding your legal rights, especially concerning marriage and family, is a vital part of navigating life in Texas. Whether your union was formalized through a ceremony or an informal agreement, the legal framework is increasingly supportive, bolstered by both state law and federal protections.