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A common law, or informal, marriage may be proved by evidence that: (1) the parties agreed to be married and after the agreement; (2) they lived together in Texas as husband and wife; and (3) they represented to others that they were married. Tex. Fam. Code Ann. § 2.401(a)(2) (1998). The proponent of a common law marriage may prove an agreement to be married by circumstantial as well as direct evidence. The legislature has not excluded the finding of a tacit agreement to be married, but circumstantial evidence must be more convincing than before the 1989 amendments to the statute. Direct evidence of an agreement to be married is not required. Evidence of cohabitation and representations that the couple is married may constitute circumstantial evidence of an agreement to be married, but the circumstances of each case must be determined based upon its own facts.
Mindy Jane Anderson and Harold Ray Lewis were married in a formal ceremony in December 1974. In 1977, the couple divorced on the husband's initiative. Following the signing of the divorce decree, Anderson and Lewis lived together for the next twenty years, until 1998. During this time, they joined a church as "Hal and Mindy Lewis" and adopted two children. Documents in both adoption proceedings referred to Anderson and Lewis as husband and wife, "Dr. and Mrs. Lewis," or "Harold and Mindy Lewis." The couple attended Lewis family functions together and celebrated wedding anniversaries. In 1998, Anderson left Lewis and filed for divorce. After Lewis denied the existence of a marriage, the trial court conducted a separate trial on the existence of an informal marriage. A jury found that Anderson and Lewis were informally married and the trial court entered a judgment declaring the existence of an informal marriage. After the trial court denied his motion for judgment notwithstanding the verdict and for new trial, Lewis perfected the present appeal, claiming that the evidence was legally and factually insufficient to support the jury’s finding. Lewis further claimed that the trial court improperly commented on the weight of the evidence in its instructions to the jury.
Did the evidence support the jury’s finding that a common law or informal marriage existed between Anderson and Lewis?
The Court found some direct evidence of an agreement in the wife's testimony that in the years after the divorce, she and the husband agreed that they were married and that the husband told her they were married. There was also circumstantial evidence of an agreement in their cohabitation and their representations to others. The Court rejected the argument that the representation of marriage after the divorce was a holding out of the earlier ceremonial marriage. The Court also found that the trial court did not improperly comment on the weight of the evidence when it instructed the jury that proof of an agreement to be married could be established by circumstantial evidence or the conduct of the parties, including cohabitation and representations to others. Accordingly, the judgment of the trial court was affirmed.