At Arlington sub-courthouse, a clerk is told to only accept documents that date the marriage as of June 26


Attorney Jon Nelson

UPDATE: After being contacted by Fairness Fort Worth President David Mack Henderson, Tarrant County Clerk Mary Louise Garcia has issued a statement saying her office will accept affidavits of common-law marriage from same-sex couples. Read about it here.
DAVID TAFFET  |  Senior Staff Writer
A gay couple trying to file an affidavit of common-law marriage with Tarrant County say they were stopped by a clerk at the Arlington Sub-Courthouse, who refused to accept the filing.
The men, who asked not to be identified at this time, have been together 23 years. The Texas common-law marriage code allows a couple who has presented itself as married to file a common-law claim rather than applying for a marriage license.
The clerk at the Tarrant County office, reportedly acting under instruction from someone else, would only accept the document if the men changed the date to June 26, 2015.
Their attorney, Jon Nelson, disagreed for a number of reasons.
“This is an affidavit,” he said. “What the state of Texas is asking my clients to do is file a false affidavit and subject themselves to criminal penalties.”
Rather than apply for a currently dated marriage license, this couple needs to prove they were married in 2009 to access retirement benefits.
One of the men worked for the city of Dallas and retired six years ago. When the Dallas Employee Retirement Fund was discussing extending benefits to same-sex couples last year, board members discussed current retiree and agreed that legal out-of-state marriages would be recognized.
When Councilman Lee Kleinman addressed common-law marriage, there wasn’t agreement, but Kleinman insisted in all cases same-sex couples would be treated equally with opposite-sex couples.
The board agreed that retired employees in same-sex relationships who can prove they were married at the time of retirement would receive benefits equal to other married couples.
Texas is one of just nine states that still has common-law marriage, and there are two kinds of common-law marriage accepted here.
The first is informal but accepted by the state: The couple must agree they are married, cohabit within the state and represent to others they are married. At that point, the state recognizes the marriage as legal.
A pension board, however, doesn’t have to recognize that marriage. So a couple in Texas can file a declaration of marriage with the county clerk’s office.
That’s what this couple decided to do.
Nelson said his clients’ affidavit stated they lived together as a married couple and presented themselves as a married couple for the past 23 years. During that time, neither was married to another person.
Nelson said the clerk is asked to swear that the couple is who they say they are and have presented a form that is properly filled out.
The clerk is not asked to interpret the document in any way, he noted.
Nelson had another problem with the county clerk’s office asking the couple to change the date on the document and perjure themselves.
“When a court declares a law unconstitutional, it, in effect, never existed,” Nelson said.
Since the Obergefell v. Hodges decision that legalized same-sex marriage came into effect, marriages performed before the decision are valid from the time of those marriages.
Common-law marriage in Texas may be declared at any time and the affidavit filed at any time and the marriage is recognized from the date the couple declared they were together.
In addition to pension benefits, common-law marriage may be preferable for couples to file for purposes of proving parental rights and placing names on a birth certificate.
In the case of Jim Obergefell, the U.S. Supreme Court decision made his marriage legal, even though his husband had died more than a year earlier. He had sued for purposes of a death certificate.
A related case was settled earlier this month in favor of recognizing the marriage of an Austin lesbian couple.
Sonemaly Phrasavath and Stella Powell had been together eight years and had a union ceremony that was not legally recognized at the time. Powell died of cancer in 2014 and her family tried to take property from the estate.
Phrasavath filed a lawsuit to have her marriage to Powell recognized by the state of Texas as a legal common-law marriage. A Travis County probate judge declared the marriage legal and Phrasavath becomes the legal heir when the suit is finalized on Oct. 5.
Nelson said common-law marriage is useful when the status of two individuals has to be established prior to a court decision. In addition to pensions and probate, he said other cases include those dealing with birth certificates and custody.
In the case of birth certificates, a couple may have legally married in Texas this summer or in another state over the past few years.
But a couple had to be married at the time of the birth or adoption of their children to automatically be placed on a birth certificate.
An affidavit of common-law marriage may cut the amount of other legal work required to have both parents’ names placed on a Texas birth certificate.
This article appeared in the Dallas Voice print edition September 25, 2015.