I Got You, Babe

We depart from our usual fare of commercial litigation to spotlight a candidate for inclusion in future family law textbooks (or at least study materials for the Texas Bar Exam). To establish a common law or “informal” marriage, the claimant has to prove (1) the couple agreed to be married, (2) after that agreement they lived together in Texas as husband and wife, and (3) they represented to others that they were married. After Joseph Marek died intestate, Deborah Anderson intervened in the probate of his estate, claiming she and Marek had an informal marriage. The probate court sided with Anderson. Marek’s sister appealed, challenging the sufficiency of the evidence that the couple had an agreement to be married and represented to others that they were married.

The Court of Appeals conducted a detailed review of the evidence and affirmed the trial court’s judgment. The proof that Marek and Anderson had held themselves out as married was conflicting, but the trial court was entitled to resolve that conflicting evidence in favor of Anderson. The seemingly closer issue was whether Marek and Aderson actually had an agreement to be married. Anderson testified that agreement came when she returned to Marek’s house (colorfully, from an illegal gambling parlor) after a period of separation. Anderson testified that Marek asked her “Are you here for good, Babe?” and she responded “Yes.” The Court held that this testimony alone was not specific enough to establish anything more than an agreement to cohabitate. Nevertheless, it was still circumstantial evidence that, combined with all the evidence that the couple had actually lived their lives as husband and wife (including six years of “Married, Filing Jointly” tax returns), served to establish an agreement to be married. Thus, it appears that evidence of a couple acting as if they are married, and representing themselves to be married, can also establish the required element of an actual agreement to be married.

In re Estate of Marek, No. 05-13-01008-CV