Untitled Texas Attorney General Opinion

Honorable Robert S. Calvert Opinion No. C- 765 Comptroller of Public Accounts Capitol Station Re: Whether the fact that Vernon Austin, Texas W. Dozier and Rosetta Bryant filed joint income tax returns as husband and wife is suf- ficient proof that Dozier and Rosetta entered into a common law marriage so as to classify Rosetta as Class "A" beneficiary under the Dear Mr. Calvert: will of Mr. Dozier. This is in answer to your request for an opinion on the following statement of facts copied from your request. "Vernon W. Dozier died testate, a resident of Dallas County, Texas, and under the terms of his last will and testa- ment, he left all of his estate to Rosetta Bryant. Mr. Vactor H. Stanford, the attor- ney for the estate, advises that Rosetta Bryant was the common law wife of Vernon W. Dozier, and his only statement to sub- stantiate this claim is that Vernon W. Dozier and Rosetta Bryant filed joint income tax returns as husband and wife. "Please advise whether or not the above statement is sufficient to classlfx Rosetta Bryant as a Class 'A' beneficiary. Common law marriages are recognized in Texas. However, whether or not there is a common law marriage is a question of fact. The essential elements of a common law marriage are an agreement presently to become man and wife; a living together pursuant to the agreement as husband and wife; and a holding out of each other to the public as husband and wife. 38 Tex. Jur.2d 45, Marriage, Sec. 15, and cases cited thereunder. -3678- Honorable Robert S. Calvert, Page 2 (C- 765) Just what act or acts of cohabitation will suffice to consumate marriage has never been stated - nor probably can it be. Manire v. Burt, 121 S.W.2d 630 (Tex.Civ.App. 1938, error ref.). Although a common law marriage is as legal and as bind- ing as a statutory marriage, and though the law does not favor but merely tolerates common law marriages, yet when common law marriage is established, it is as valid and binding as cere- monial marriage and law applicable to ceremonial marriage is equally applicable to common law marriage. Texas Employer's Insurance Association v. Elder, 274 S.W.2d 144 (T Civ.App. 1954, affirmed 155 Tex. 27, 262 S.W.2d 371). TheeZaim of common law marriage is closely scrutinized in all matters involving property rights. Welch v. State, 207 S.W.2d 627 (Tex.Crim. 1948). The filing of joint income tax returns is not a hold- ing out of each other to the public as husband and wife because Federal Income Tax returns are not open to the public and not available to the public. We are of the opinion that the facts submitted do not substantiate a common law marriage, as the submitted facts do not reveal the essential el;ments of a common law marriage. The essential elements are . . . an agreement to become husband and wife, a living together pursuant thereto as such, and a holding out of each other to the public as husband and wife." Martinez v. Martinez, 6 S.W.2d 408 (Tex.Civ.App. 1928). SUMMARY The facts submitted do not substantiate a common law marriage. Yours very truly, WAGGONER CARR JHB/fb -3679- . t Honorable Robert S. Calvert, Page 3 (C-765) APPROVED: OPINIOR co!@inTER W.~V. Geppert, Chairman Fopznkayne Gordon Cam Brandon Blckett APPROVED FOR TRE ATTORNEY OEMERAL BY: T. B. Wright -3680-