In early 2015, marriage between same-sex partners seemed to be on the verge of becoming legal. A decision from the U.S. Supreme Court was on its way in Obergefell v. Hodges, buoyed by the support for the nationwide legalization of same-sex marriage by a large portion of the country. Then on June 26 came the declaration that same-sex marriages were not only legal but also the laws which prohibited them were declared unconstitutional.

The Obergefell decision opened the door to a rush of same-sex couples flooding courthouses with marriage license applications. There was also an immediate surge in the number of divorce filings by couples who had married in other states where same-sex unions had been legal for years. Once they moved to Texas, they found themselves stuck together in holy matrimony long after traditional marriages would have ended in divorce. For prisoners of a government which would not recognize their marriage, divorce simply was not an option. To a great degree, for these couples, Obergefell was a relief.

Although the new law was clear for these couples, it was unclear what the law said about couples who had been living for years as if they were married, wearing rings and calling each other husband or wife. Were they married now, too? Could same-sex couples actually be married informally, through common law?

For those unions which claim to have begun after June 26, 2015, the answer is an easy “yes,” as there would now be no distinction between the rights of heterosexual couples and homosexual couples. If one can claim an informal marriage, then so can the other. The sticky issue became common-law marriage before Obergefell. Does the law require the court to find, given the right circumstances and evidence, that a same-sex relationship, founded in common law, existed before June 26, 2015?

The true aim of the Obergefell decision was to level the playing field and ensure the equal treatment of same-sex and opposite-sex couples. After all, a statute that has been declared unconstitutional is void from its inception and cannot provide a basis for any right or relief. Since its unconstitutionality dates from the time of its enactment, and not from the date of the decision striking the statute, it is as if the statute had never been passed and had never existed. In the wake of Obergefell, any precedent banning the recognition of same-sex marriages has been overturned as an unconstitutional denial of a fundamental right.

Courts have recognized the retroactive nature of Obergefell in its application to other areas of civil law. For example, a 2016 opinion out of the U.S. District Court, Eastern District of Texas, in Ranolls v. Dewling held that Obergefell should be applied retroactively to recognize the right of a decedent’s same-sex partner to bring suit as a surviving spouse, pursuant to Texas’s wrongful death and survival statutes, against a truck driver on the basis of her alleged common-law marriage to the motorist.

With the court’s finding, the precedent seems to indicate that Obergefell should be applied retroactively, including such application to informal marriage, with no special provisions required.

The evidentiary burden that a litigant must meet to establish the parties’ informal marriage is the same that any traditional couple would face when establishing an informal marriage. Namely, the petitioner must establish that: (i) there was an agreement to be married; (ii) the couple cohabitated in Texas; and (iii) represented to others that the parties are married.

The agreement to be married may be express or implied; and no specific words are required to show an agreement. The spouse asserting the common-law marriage needs to put on a compelling case for an agreement and for a showing that they cohabitated in Texas, but how does a couple hold out that they are married when their marriage is considered illegal? In order to determine whether a couple has represented themselves to others as married, the court held in 1998’s Lee v. Lee that the conduct and actions of each couple should be examined on a case-by-case basis.

This ruling becomes the key for same-sex spouses to prove common-law marriages before Obergefell. It is, indeed, a case-by-case basis, that evidence which will work for the same-sex couple that has held themselves out as married, within the constraints of the unconstitutional laws which barred their marriage? The couple could not file joint tax returns; that was equally forbidden. Should one of them be required to change their name even when traditionally married couples are not so obligated? No, but it would be a strong indication. They could exchange rings. They could introduce themselves as husband and husband, but could they really be expected to do any of those things during a time when the law said they couldn’t be married?

As with opposite-sex couples, the determination of a common-law marriage is fact-driven. So here’s what it comes down to: Although the Texas Supreme Court has yet to encounter the issue, appellate cases are finding that informal marriages may be found to have existed retroactive to Obergefell. And, as these fact-intensive cases get decided, the difficult part for the same-sex partner wishing to prove an earlier common-law union will be to show that a marriage union existed, given the fact that the law, pre-June 26, 2015, would not recognize it. If the spouses could not see ahead to a time when laws banning same-sex marriage would be declared unconstitutional, then they might not have done the things which heterosexual couples often do to declare to all the world “we are married.”

Jeff Anderson is a name partner in the family law firm Orsinger, Nelson, Downing & Anderson, LLP. He can be reached at