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A couple in Texas, otherwise unmarried, can go to the county courthouse and register their marriage on any date they choose. The date can be years earlier. Is this allowed elsewhere? What legal system is this practice likely to be inherited from?

I would like to offer more information about why I am curious about formalization of informal marriages. First, as in Texas, same sex couples could obtain certification of marriages that were initiated before such marriages were legal. People could obtain the benefits of a long standing marriage, even predating Obergefell versus Hodges. Moreover, Texas law does not seem to prohibit any couple from moving to Texas, becoming residents, and formalizing their long-standing relationship, though started elsewhere. This might take only a few days or possibly a month depending on the requirements for residency.

Second, I met a couple who had recently married in Britain in a Hindu (I believe) ceremony, but did not marry in a church or registry office. Thus, their marriage was not registered. I met them on the airplane when they were flying to Las Vegas with the intention of marrying there to obtain legal recognition of their marriage. They seemed to believe that others had done the same. From news sources I understand that marriage without documentation in Britain is fairly common among both Hindus and Muslims. This presents a problem, particularly to women, if they later seek a divorce since they are not recognized as married by the British courts.

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    So according to the answer, this procedure isn't for couples who are "otherwise unmarried", but for those who are already married under common law (by living together as spouses, etc). And the date presumably can't actually be any date they choose, but only within the time period of their common-law marriage. Jun 6, 2023 at 16:03
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    @NateEldredge Just so.
    – ohwilleke
    Jun 6, 2023 at 17:37
  • @NateEldredge They are only married to each other, not to anyone else, nor were they married to anyone else when they initiated their informal marriage. Jun 6, 2023 at 19:08

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The question mischaracterizes Texas law. Texas allows a common law marriage to be formally acknowledged in a document signed by the parties, for bureaucratic convenience and to end uncertainty. As clarified in the comments:

this procedure isn't for couples who are "otherwise unmarried", but for those who are already married under common law (by living together as spouses, etc). And the date presumably can't actually be any date they choose, but only within the time period of their common-law marriage.

In Texas, there is a common law marriage (per the link above) when you and your partner:

are not already married, informally or formally, to anyone else at the time the marriage was created, AND

both you and your partner were at least 18 years of age when the marriage was created; and

you agreed to be married, AND

afterward, lived in Texas as a married couple, and

represented to others that you are married (“holding out” to others).

These requirements, or some close variant of them, are typical of almost all common law marriage states.

Common law marriages may be formed in the following U.S. states:

Colorado: Common law marriage contracted on or after Sept. 1, 2006, is valid if, at the time the marriage was entered into, both parties are 18 years or older, and the marriage is not prohibited by other law (Colo. Stat. §14-2-109.5)

Iowa: Common law marriage for purposes of the Support of Dependents Chapter (Iowa Code §252A.3) Otherwise it is not explicitly prohibited (Iowa Code §595.1A)

Kansas: Common law marriage will be recognized if the parties are 18 or older and for purposes of the Divorce and Maintenance Article, proof of common law marriage is allowed as evidence of marriage of the parties (Kan. Stat. §23-2502; Kan. Stat. §23-2714)

Montana: Not strictly prohibited, they are not invalidated by the Marriage Chapter (Mont. Stat. §40-1-403)

New Hampshire: Common Law Marriage: "persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married." (N.H. Stat. §457:39)

South Carolina: allows for marriages without a valid license (S.C. Stat. §20-1-360)

Texas: Common Law Marriage in specific circumstances (Tex. Family Law §1.101; Tex. Family Law §2.401-2.402)

Utah: Utah Stat. §30-1-4.5

While Texas provides a standard form for doing so, affidavits from each spouse, possibly filed in public real property records where the parties reside, would have the same effect. The use of a standardized safe harbor state approved form for doing this is a Texas-specific innovation.

Common law marriage derives from English law, although it has since been abolished in England. The practice of formally documenting events and relationships that arise by operation of law with a signed instrument is a long standing one in all sorts of legal contexts.

The Texas standard form Declaration would be prima facie evidence of the facts stated in it about the common law marriage of the parties, that would be hard to rebut. But, if someone had a legitimate reason to question whether they were actually married on the date stated (e.g. to overcome a claim of spousal confidential communications privilege) this could be overcome with evidence offered in an evidentiary hearing to the contrary (e.g. proof that the couple didn't meet until two years after the date recited).

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  • But do any of these states, or any others, have a procedure to formalize a marriage at a later date, other than getting married at the later date? Jun 6, 2023 at 21:05
  • @DavidSmith Record an affidavit of the facts establishing common law marriage.
    – ohwilleke
    Jun 6, 2023 at 21:59

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