Law School Case Brief
Russell v. Russell - 865 S.W.2d 929 (Tex. 1993)
For suits filed on or after September 1, 1989, the existence of a common law marriage in Texas requires proof of each of the three elements of an informal marriage set forth in Tex. Fam. Code Ann. § 1.91(a)(2) no later than one year after the relationship ended. The elements are (1) an agreement to be married, (2) after the agreement, the couple lived together in this state as husband and wife, and (3) the couple represented to others that they were married. The 1989 amendment defines the burden of proof for informal marriages and eliminates the ability of courts to simply infer an agreement to marry from evidence that they lived together as husband and wife and represented to others that they were married.
This involved two consolidated cases. In the first case, petitioner husband and respondent wife were ceremonially married after they had cohabited for many years. A trial court later declared that there was an informal marriage between petitioner and respondent. The appellate court affirmed. In the second case, petitioner and respondent cohabited for many years. In divorce proceedings, the trial court declared the existence of an informal marriage. A second appellate court reversed. Both petitioners requested discretionary review, arguing that an agreement to be “informally” married may be established by direct or circumstantial evidence under Tex. Fam. Code Ann. § 1.91.
Could an informal marriage be established by circumstantial evidence under Tex. Fam. Code Ann. § 1.91?
The Court held that an informal marriage could be established by either direct or circumstantial evidence under Tex. Fam. Code Ann. § 1.91 by showing that the parties agreed to be married, that they lived together in the state after reaching the agreement, and that the parties represented to others that they were married. In the present cases, the Court reversed the decision declaring an informal marriage between petitioner husband and respondent wife, as the appellate court failed to consider whether there was sufficient evidence of a marriage agreement. The Court further reversed the decision that no marriage existed between second petitioner and respondent, as the appellate court failed to consider circumstantial evidence of a marriage agreement. The Court remanded both matters.
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