1-281-DIVORCE (348-6723)


1-281-DIVORCE (348-6723)

Putative Marriage in Texas, Elements, & Rights of a Putative Spouse in Texas

Putative marriage is a marriage contracted in good faith and in ignorance (on one or both sides) for which impediments exist that render the marriage unlawful.

Putative marriage marriages are attempted marriages which are contracted in good faith by at least one party but are void because of an unknown obstruction to the person claiming to be a spouse.

The purpose of the “putative marriage doctrine” in Texas is used to correct an injustice which might otherwise occur if a marriage is believed to be valid by one or both of the parties but deemed void.

As such the doctrine works as a protective mechanism for the innocent persons the critical distinction is that the marriage itself is not rendered valid rather the doctrine allows the innocent party certain rights in the estate created during the relationship a putative spouse has all the rights and privileges pertaining to a legally valid marriage, including their right to an equitable division of all property acquired during the relationship in a suit for divorce or a suit to declare a marriage void.

As a putative spouse a party has the same rights in property acquired during the relationship is a lawful spouse, the property rights of a putative spouse are limited to the property rights acquired during the putative marriage.

A putative spouse has no right to any share of the property in which their purported spouse had at the time of the putative marriage whether that property was separate or community.

However a putative spouse has the right to assert claims of equitable reimbursement.

Conditions that give rise to a putative marriage

The conditions that give rise to a putative marriage the question of whether a punitive marriage exists commonly arises in two circumstances:

  • As a result of a divorce proceeding where one spouse challenges the validity of the marriage.
  • And as a result of the death of a spouse where a putative spouse has illegal spouse claim survivor rights in this state of the decedent.

The requirement of good faith this is an essential element of repeated putative marriage is “good faith”.

However, it is note that good faith is presumed.

Clear and positive evidence is required to overcome the presumption of innocence to support a putative marriage.

As long as the good faith spouse remains ignorant of the impediment of putative marriage exists.

At any time there is a claim for a common-law marriage it will be important to also consider the concepts of a putative marriage, an invalid common law or informal marriage  entered into in good faith by one or more of the parties may serve as the party’s justification and asserting rights as a putative spouse.

Both an informal marriage and a ceremonial marriage can be the basis of a putative marriage.

The following factors may be considered whether a purported spouse to a putative marriage has a good faith belief in the validity of the marriage:

  • The purported putative spouse’s age, life experiences, and level of sophistication.
  • The purported putative spouse’s proximity from the jurisdiction to the purported divorce.
  • The purported putative spouse’s citizenship status, nationality his or her birthplace.
  • Whether the putative spouse is pregnant.
  • Reputative spouse’s understanding of the familiarity with marriage and divorce requirements and laws.
  • Whether the putative spouse received assurances from the other spouse concerning their marital status.
  • Marriage documents
  • Testimony
  • And whether the parties involved have been living together as husband and wife.

The impediments that give rise to a putative marriage are going to be commonly the existence of a prior marriage to a third party.

Termination of a putative marriage

As with other marriages, a putative marriage is terminates by the death of either party to the marriage.

A putative marriage also terminates when the legal impediment to the validity of the marriage is removed.

Thus if the spouse who was married to someone else becomes divorced or that other person who is married to one of the spouses in the putative relationship passes away then that would remove the impediment such that the punitive marriage will now become a valid marriage.

The rights of a putative spouse other rights than the right to the property division would be inheritance rights the surviving pewter spouse cannot inherit the other spouse’s separate property unless the will so specifies.

When a putative spouse’s partner dies intestate, and the descendant has a surviving lawful spouse the putative spouse is only entitled to one half the interest in the marital property acquired after the inception of the period of marriage constituting the decedent’s estate.

The surviving spouse right to the estate of a spouse incepts  from the date of the ceremony if the putative spouse is based on a ceremonial marriage or from the date of the agreement to be married if the putative spouse marriage is based on common law or informal marriage.

For homestead rights as with other citizens of the state of Texas a putative  spouse having an interest in property is entitled to claim homestead survivorship  rights under the Texas constitution.

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Michael Busby is a Houston divorce lawyer who has been in practice for over 20 years and appears daily in the Family Law Courts of Harris County and Fort Bend County Texas

Busby & Associates , have two Houston Offices, one in Chinatown, Houston Texas and another in Independent Heights, Houston, Texas. Michael Busby is Board Certified in Family law by the Texas Board of Legal Specialization.