The U.S. Supreme Court validated and recognized same-sex marriage across the country in 2015. However, this also posed complications for same-sex couples in Texas seeking a divorce or asserting other rights when they lived together for years without a marriage license but who held themselves out and acted as married couples.
For recognition of a common law marriage, couples must establish that there was an agreement for marriage, the couple lived together in Texas, and they represented themselves to others that they were married. No specific words had to be used for a marriage agreement
Same-sex couples who entered in these common law marriages, after the Supreme Court's June 2015 Obergefell ruling, had the same rights of heterosexual couples. These unions are recognized in Texas.
The Supreme Court's decision, however, may apply to relationships before June 2015. In other words, laws prohibiting same-sex marriage are viewed as always being unconstitutional and not just from the date of the Court's opinion. However, these couples have the obstacle that their marriage was considered illegal before June 2015.
Arguably, same-sex couples did not engage in conduct representing a marital relationship because these were not recognized before the Supreme Court's ruling. They were not allowed to file joint tax returns, may not have changed their last names, exchanged rings or even held themselves out as being married because their relationship was not recognized.
In one case, however, a federal district court in Texas ruled in 2016 that the Supreme Court's decision applied retroactively to the surviving partner of a same-sex relationship. The court allowed her to file a wrongful death action based upon her claimed common law marriage to a person who was killed by a truck driver. Their relationship began before the Court's Obergefell ruling.
This dilemma also applies to same-sex couples who are seeking a divorce decree. If these couples do not hold a marriage license, they may have to show that they were involved in a common law marriage before 2015.
Courts must address this individually based upon the facts of each case. An attorney can help same-sex couples gather evidence and protect their rights.
Source: Texas Lawyer, "Same-sex and the common-law marriage," By Jeff Anderson, Jan. 1, 2018