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Common Law Marriage and Leave Benefits

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Employers may have questions about an employee’s eligibility to use leave benefits when the individual declares they are in a common law marriage.

Questions arise on whether employees in a common law marriage can access benefits for their spouse, what type of documentation can be required by an employee to validate the marital relationship, and whether domestic partners are considered spouses.

Understanding Common Law Marriage

In Texas, common law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas. The marital status of individuals who enter into a common law marriage are the same as those who obtain a marriage certificate and participate in a civil or religious ceremony.

According to the Texas State Library, Texas law states that a common law marriage may be proved by evidence that the couple:

  • “agreed to be married”; and
  • “after the agreement they lived together in this state as husband and wife”; and they
  • “represented to others that they were married”

While it is not a requirement, couples can register their common law marriage by filing a Declaration and Registration of Informal Marriage with the county clerk. For couples who choose not to declare their common law marriage, documents such as lease agreements, tax returns, and insurance policies may be requested in order to “prove” the marriage.

A domestic partner is not the same as common law spouse. Domestic partnerships allow an unmarried couple to claim some of the same benefits that married couples enjoy. Domestic partnerships are not recognized statewide but are recognized by specific city and county employers in Texas (e.g., Austin, Dallas, Houston, San Antonio, Travis County). This generally means these municipalities extend benefits to domestic partners of their employees. However, this extension only applies to those employed by the city or county, not for other employers.

Benefit Access and Leave Eligibility

TRS-ActiveCare permits an employee to cover their spouse, including a common law spouse, as a dependent. TRS stipulates that for a common law spouse to be eligible, a Declaration of Informal Marriage must be filed with an authorized government agency.

For purposes of FMLA leave, spouse means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common law or same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States, if the marriage could have been entered into in at least one state.

Under the FMLA, employers can require workers who take leave to care for a relative to provide reasonable documentation to verify a family relationship. An employee’s simple written statement asserting the family relationship would satisfy this requirement. If an employee has submitted the required TRS documentation for covering a family member, including a common law spouse, the documentation provided for enrollment purposes is sufficient to confirm the family relationship.

Employers should have a consistently applied, nondiscriminatory policy when asking for confirmation that a family relationship exists. Employees claiming a common law marriage should be treated the same as those who obtain a marriage certificate and participate in a civil or religious ceremony.

According to a recent MetLife article, domestic partners can’t legally claim each other as “family.” However, review your definition of immediate family in Policy DEC(LOCAL) for purposes of leave other than family and medical leave. Many education entities include “anyone living in the same household at the time of illness or death” as immediate family.


Detailed information and forms for administering FML can be found in the HR Library (member login required). Additional information on how to handle FML for spouses working for the same employer is provided in the HRX article FML for Spouses. If you have other questions, please contact HR Services at or 800-580-7782.

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April Mabry
April Mabry
Best Practices: Salary Notification Letters

April Mabry oversees HR Services training services, member library products, and the HRX newsletter. She has provided HR training and guidance to Texas public schools  since 1991. Mabry was a classroom teacher for 11 years in Texas and Michigan.

Mabry has a bachelor’s degree in education from the University of Michigan and certification as a professional in human resources (PHR) and is a SHRM-CP.

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