Applying the law of Texas, where Girard was domiciled at the time of his death, the AJ noted that Texas law recognizes a presumption of validity in favor of the latest marriage (in this case, Luvenia and Girard's marriage). See Texas Fam. Code Section(s) 2.01 (1996); Rodriguez v. Avalos, 567 S.W.2d 85, 87 (Tex.Ct.Civ.App. 1978) (section 2.01 of the Texas Family Code codified well-established Texas law). The AJ also noted that this presumption may be overcome by a conclusive demonstration of no divorce dissolving a previous marriage.
The Texas courts have held that this provision applies to common-law marriages. Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex.Civ.App. 1979); Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex.Civ.App. 1978). It is important to point out that § 2.22 is quite different from § 1.91.
(noting that circumstantial evidence of agreement to be married included marriage proponent's testimony that the parties had "filed joint tax returns, opened bank accounts, and purchased property as husband and wife"); Rodriguez v. Avalos, 567 S.W.2d 85, 86-87 (Tex. App.-El Paso 1978, no writ) (identifying "a contract of sale covering the purchase of [the parties'] home . . ., applications for credit, a financial statement, a credit insurance policy, a burial insurance policy, various promissory notes, security agreements, and income[-]tax returns" that referred to the parties as husband and wife as evidence supporting the existence of an informal marriage); Day v. Day, 421 S.W.2d 703, 705 (Tex. App.-Austin 1967, no writ) (holding that joint income-tax return was admissible evidence regarding existence of informal marriage).
The party seeking to establish the existence of a common law marriage after the impediment to the marriage has been removed bears the burden of proving that the parties continued to co-habitate [sic] as man and wife and held themselves out to others as married after the impediment was removed. Garduno at 741; Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex. Civ. App. 1978). There is no requirement that the parties had to be living in Texas when the impediment was removed but they then lived together and held themselves out to others to be man and wife.
The party seeking to establish the existence of a common law marriage after the impediment to the marriage has been removed bears the burden of proving that the parties continued to co-habitate as man and wife and held themselves out to others as married after the impediment was removed. Garduno at 741; Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex. Civ. App. 1978). There is no requirement that the parties had to be living in Texas when the impediment was removed but they then lived together and held themselves out to others to be man and wife.
a. Agreement to be married In point of error two, Eris asserts Phares's evidence is legally and factually insufficient to support the jury's finding that she and Phares agreed to be married.To establish this element of common-law marriage, the evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife. Winfield, 821 S.W.2d at 645; Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex.App.-El Paso 1978, no writ). (1) Legal sufficiency
To establish this element, the evidence must show that the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife. Winfield, supra 821 S.W.2d at 645, citing Rodriguez v. Avalos, 567 S.W.2d 85 (Tex.App. — El Paso 1978, no writ). Second, the proof must show that the parties lived together in the State of Texas, as husband and wife.
Winfield contends Renfro did not prove they agreed to be married. To establish this element, the evidence must show the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife. Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex.App. — El Paso 1978, no writ). (1) Legal sufficiency
See Schlumberger Well Servicing Corp. v. Nortex Oil Gas Corp., 435 S.W.2d 854 at 858 (Tex. 1969). Appellee cites Foix v. Jordan, 421 S.W.2d 481 (Tex.Civ.App. El Paso 1967, writ ref'd n. r. e.) and Rodriguez v. Avalos, 567 S.W.2d 85 (Tex.Civ.App. El Paso 1978, no writ) to support the trial court's finding of valid common-law marriage. In Foix there was evidence of an express agreement to be married, i. e., the couple had participated in a Mexican church wedding.
This provision does apply to common-law marriage. Rodriguez v. Avalos, 567 S.W.2d 85 (Tex.Civ.App. El Paso 1978, no writ). The law of another state is usually presumed to be the same as Texas law.