First Comes Love, Then Comes Marriage: Cohabitation as a Framework for Conflicts Between Community Property and Common Law Marriage

Abstract

Part I of this comment will begin to address key concepts in Texas law, including separate property, community property, the homestead, and how marriage is organized. Part II will present a hypothetical fact situation that incorporates these concepts and produces problems related to community property, common law marriage, and property distribution. Part II also discusses consequences that may arise from these problems and the lack of a clear solution for them. Part III takes a deeper dive into community property as a system of property organization, its history, how it works in Texas, and how it impacts property distribution upon death in Texas. Part IV similarly addresses common law marriage in more depth, its history, theories for its adoption, and efforts to abolish it. Part V summarizes the sociopolitical and legal context surrounding how people choose to live together as well as the negative sentiment towards and negative treatment of same-sex couples in Texas. Part VI presents cohabitation in its broader sense as a framework through which to examine formal marriage, common law marriage, and other ways people organize their relationships. Additionally, Part VI analyzes different methods of recognizing relationships and how other jurisdictions grant property rights according to these methods. Part VII considers all the aforementioned concepts and offers a solution to the problems created by the hypothetical, and lastly, the conclusion in Part VIII reviews main points and this Comment’s goals.