Honorable Robert S. Calvert      Opinion No. C- 765
Comptroller of Public Accounts
Capitol Station                  Re:   Whether the fact that Vernon
Austin, Texas                          W. Dozier and Rosetta Bryant
                                       filed joint income tax returns
                                       as husband and wife is suf-
                                       ficient proof that Dozier
                                       and Rosetta entered into a
                                       common law marriage so as to
                                       classify Rosetta as Class
                                       "A" beneficiary under the
Dear Mr. Calvert:                      will of Mr. Dozier.
       This is in answer to your request for an opinion on the
following statement of facts copied from your request.
              "Vernon W. Dozier died testate, a
         resident of Dallas County, Texas, and
         under the terms of his last will and testa-
         ment, he left all of his estate to Rosetta
         Bryant. Mr. Vactor H. Stanford, the attor-
         ney for the estate, advises that Rosetta
         Bryant was the common law wife of Vernon
         W. Dozier, and his only statement to sub-
         stantiate this claim is that Vernon W.
         Dozier and Rosetta Bryant filed joint
         income tax returns as husband and wife.
               "Please advise whether or not the above
          statement is sufficient to classlfx Rosetta
          Bryant as a Class 'A' beneficiary.
       Common law marriages are recognized in Texas. However,
whether or not there is a common law marriage is a question of
fact. The essential elements of a common law marriage are an
agreement presently to become man and wife; a living together
pursuant to the agreement as husband and wife; and a holding
out of each other to the public as husband and wife. 38 Tex.
Jur.2d 45, Marriage, Sec. 15, and cases cited thereunder.


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Honorable Robert S. Calvert, Page 2 (C- 765)


       Just what act or acts of cohabitation will suffice to
consumate marriage has never been stated - nor probably can
it be. Manire v. Burt, 121 S.W.2d 630 (Tex.Civ.App. 1938,
error ref.).
       Although a common law marriage is as legal and as bind-
ing as a statutory marriage, and though the law does not favor
but merely tolerates common law marriages, yet when common law
marriage is established, it is as valid and binding as cere-
monial marriage and law applicable to ceremonial marriage is
equally applicable to common law marriage. Texas Employer's
Insurance Association v. Elder, 274 S.W.2d 144 (T   Civ.App.
1954, affirmed 155 Tex. 27, 262 S.W.2d 371).  TheeZaim  of
common law marriage is closely scrutinized in all matters
involving property rights. Welch v. State, 207 S.W.2d 627
(Tex.Crim. 1948).
       The filing of joint income tax returns is not a hold-
ing out of each other to the public as husband and wife because
Federal Income Tax returns are not open to the public and not
available to the public.
       We are of the opinion that the facts submitted do not
substantiate a common law marriage, as the submitted facts do
not reveal the essential el;ments of a common law marriage.
The essential elements are . . . an agreement to become
husband and wife, a living together pursuant thereto as such,
and a holding out of each other to the public as husband and
wife." Martinez v. Martinez, 6 S.W.2d 408 (Tex.Civ.App. 1928).

                    SUMMARY
              The facts submitted do not substantiate a
         common law marriage.
                                       Yours very truly,
                                       WAGGONER CARR




JHB/fb



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    Honorable Robert S. Calvert, Page 3 (C-765)


    APPROVED:
    OPINIOR co!@inTER
    W.~V. Geppert, Chairman
    Fopznkayne
    Gordon Cam
    Brandon Blckett
    APPROVED FOR TRE ATTORNEY OEMERAL
    BY: T. B. Wright




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