“I am married to a married man! Is my marriage valid?”
This question usually comes up during a probate process. When the husband dies, the wife (during probate) may discover that the man was previously married.
Who gets the community property?
Who will be the administrator of his estate? This is one of the scenarios where Estate Law meets Family Law.
Answer: The Most Recent Marriage is Presumed Valid.
The answer is in section 102 of Chapter 1 of the Texas Family Code. The code states: “When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.”
That sounds like a lot of words!
Simply stated, the most recent marriage is valid.
So, if you are the “second” wife, or let’s say “Wife B”, then your marriage is valid.
Wife A, the first wife, has the burden of proving that her marriage is still valid. This is called a “rebuttable presumption”. In other words, our assumption that the second marriage is valid can be argued or countered by Wife A.
No spouse is required to use lack of divorce to Wife A as evidence that the second marriage is non-existent, (Davis v. Davis, Tex. 1975).
After proving that the prior marriage still exist, it is up to a jury (or finder of facts) to weigh the facts.
Who Has to Prove the Validity of a Marriage?
The person attacking the valid marriage (the second marriage). This person must introduce enough evidence that shows that the first marriage did not dissolve.
Also, death terminates marriage as matter of law. In the state of Texas, death is presumed after seven years of absence. Therefore, Husband’s failure to present any evidence to establish that a former Husband was alive within 7 years before the parties’ marriage or (after) meant the second marriage remains valid. (Loera v. Loera, Tex. 1991).
One last note: the presumption that the second marriage is valid is strong. Therefore, talk to a family attorney about your specific facts and the proofs you need.
If you have questions, call our office. One of our staff will schedule a consultation or case evaluation for you. (832) 529-1255 or firstname.lastname@example.org.