The “Putative” Marriage in Texas
In all my years of dealing with marriages (or the breaking them up) I do not believe I have ever run across a putative marriage. So we, you and I, are learning something new today. Isn’t this fun!
The putative marriage does not exist in the Family Code, only in case law. Basically a putative marriage is created when to people (man and woman) believe that they are married, but are not because of some impediment to their marriage, i.e. one party is still married to someone else. This scenario creates a void marriage pursuant to §6.202 of the Family Code. Parties in a putative marriage have two choices:
- File suit to declare their marriage void and end it all, or
- Clear up the impediment to their marriage by getting a divorce in the prior marriage or otherwise fixing the problem that caused the putative marriage in the first place.
If the second choice is taken, and the prior marriage dissolved, the later marriage now becomes a valid marriage. If the first choice is taken, the courts have held that the putative spouse can hold the same property rights and rights to children as in a normal divorce.
This is a very simple explanation of a somewhat complex theory, but I think the idea is pretty clear.
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