While the Texas legislature has not specifically enacted any provision in the Family Code for cohabitation agreements, the general feeling is that these agreements are valid and will be upheld by the court. Generally speaking courts like parties to make clear and precise arrangements and spell out their relative rights, duties and obligations. In my opinion, cohabitation agreements in Texas are very important because of the Texas concept of common law marriage. Texas law provides that if a man and woman agree to be married, and after the agreement they live together in this state as husband and wife and represent themselves to others that they were married, they are in fact common law married. A common law marriage is just as valid in the State of Texas as a ceremonial marriage that has been performed by a minister, a rabbi, a priest or a judge. The problem is that when people live together, other people frequently assume that they are husband and wife. Also, they occasionally will check into a hotel as husband and wife. This issue becomes did they really intend to be married? When they separate, if one person alleges that they agreed to be married and intended to be married, it will be necessary to prosecute or defend a divorce action. One of the two parties who thought that they were simply living together may find that what they thought was their own property is in fact classified under Texas law as community property.

I have prepared a number of cohabitation agreements. I prefer to insert a clause to the effect that the parties agree in the contract that they will not ever be common law married, and they will only be married if they go through a ceremonial marriage. To my knowledge that provision has never been tested in the Texas’ court. However, again recognizing that courts do like people who spell out their relative duties, obligations and responsibilities, I believe that if it is tested, it will be upheld.

A cohabitation agreement should have all of the formalities of a premarital agreement. Additionally, it is possible to include in a cohabitation agreement, a premarital agreement recognizing that if the parties ever do become ceremonially married, than the premarital agreement will become effective upon marriage, and will control the property during the marriage relationship.