James Lambie RUSSELL, Petitioner, v. Margaret Ann RUSSELL, Respondent; Vivian Alice WEABER, Petitioner, v. Ronald Kent LORENSEN, Respondent, 865 S.W.2d 929

OPINION HIGHTOWER, Justice. In these consolidated eases, we consider the effect of a 1989 amendment to

section 1.91 of the Texas Family Code, entitled “Proof of Certain Informal Marriages,” concerning evidence of an agreement to be “informally” married. In each case, the trial court found that an informal marriage existed. The courts of appeal, however, reached conflicting results. In Russell v. Russell, the Ninth Court of Appeals affirmed the existence of an informal marriage although it reversed and remanded the case to the trial court to determine when the informal marriage began. 838 S.W.2d 909. In Lorensen v.

Weaber, the Fifth Court of Appeals held that there was no evidence that the parties agreed to be married, reversed the trial court’s judgment and rendered judgment that a valid marriage did not exist. 840 S.W.2d 644. We hold that under

section 1.91 of the Family Code, as amended in 1989, an agreement to be married may be established by direct or circumstantial evidence. For the reasons explained herein, we reverse the judgments in Russell v. Russell and Lorensen v. Weaber and remand those causes to the Ninth and Fifth Courts of Appeal for further proceedings consistent with this opinion. In Russell v. Russell, James and Margaret Russell were ceremonially married in Texas in 1981. In the period before the ceremonial marriage — 1964 to 1981 — the parties cohabited intermittently and had five children, all supported and acknowledged by James.

Margaret alleged that she and James were married on or about April 17,1964. The trial court, sitting without a jury, found that there was a common law marriage which began March 22, 1972. The court of appeals, interpreting the 1989 amendment to

section 1.91(

b) of the Texas Family Code, affirmed the existence of an informal marriage although it reversed and remanded the case to the trial court to determine when the informal marriage began. Concerning the 1989 amendment, the court of appeals stated “that regardless of the amendment of sec. 1.91(b), an agreement to be married may be inferred from direct or circumstantial evidence which preponderates that the parties lived together in the State of Texas and did, in Texas, represent to others that they were married.” 838 S.W.2d at 913. In Lorensen v.

Weaber, Vivian Weaber and Ronald Lorensen began cohabitating on or about February 6, 1982. Lorensen is a pipe-fitter and his job required frequent moves. In January 1991, the couple separated and Weaber filed suit for divorce in February 1991. The trial court sitting without a jury found that the parties were married, without formalities, on February 16,1982. The court of appeals held that there was no evidence that the parties agreed to be married, reversed the trial court’s judgment and rendered judgment that a valid marriage did not exist. I. Weaber and Russell argue that under the 1989 amendment to

section 1.91 of the Texas Family Code, an agreement to be “informally” married may be established by direct or circumstantial evidence. We agree. Common law marriages have been recognized in Texas since 1847. Tarpley v. Poage’s Adm’r, 2 Tex. 139, 149 (1847). From this beginning, Texas has rejected the necessity of ritual formalities to establish the marriage relationship. However, Texas’ recognition of common law marriages has been described as “grudging.” Kathryn S.

Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 HOUS.L.REV. 1131, 1150 (1991) (hereinafter Recent Changes). See Texas Employers’ Insurance Ass’n v. Elder, 274 S.W.2d 144, 147 (Tex.Civ.App.—Fort Worth 1954), aff'd on other grounds, 155 Tex. 27, 282 S.W.2d 371 (1955) (“[t]he law does not favor, but merely tolerates ... common-law marriages.... ”). Despite strong pressure to do so, in 1970 the Texas legislature refused to abolish common law marriages when it enacted Title 1 of the Family Code.

Recent Changes, 28 HOUS.L.REV. at 1150; Woodrow M. Bone-sio, Comment, Marriage and Divorce Under the Texas Family Code, 8 HOUS.L.REV. 100, 107 (1970). As enacted,

section 1.91 stated: (

a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been executed under

Section 1.92 of this code; or (2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. (

b) In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married. In sections 1.91(a)(1) and 1.92-95, the legislature added a provision allowing a couple to file a declaration of informal marriage with the county clerk. Although such a declaration constitutes prima facie proof of the parties informal marriage, the parties need not make the declaration to have a valid common law marriage.

In 1989, some members of the legislature attempted to abolish common law marriage. See Tex.H.B. 588, 71st Leg., R.S. (1989); Recent Changes, 28 HOUS.L.REV. at 1151. The effort failed, but the legislature amended

section 1.91(

b) to make proof of common law marriages more difficult in Texas. See Act of June 14,1989, 71st Leg., R.S., eh. 369, § 9, 1989 Tex.Gen.Laws 1458, 1459 (codified at Tex.Fam.Code Ann. § 1.91(b)).

Section 1.91 now states: (

a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been executed under

Section 1.92 of this code; or (2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. (

b) A 'proceeding in which a marriage is to be proved under this

section must be commenced not later than one year after the date on which the relationship ended or not later than one year after September 1, 1989, whichever is later. (Emphasis added). Prior to the 1989 amendment,

section 1.91 permitted courts to infer or imply the couple’s marriage agreement from evidence which established cohabitation and public representation. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981); Howard v. Howard, 459 S.W.2d 901, 903-04 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ). II. For suits filed on or after September 1, 1989, the existence of a common law marriage in Texas requires proof of each of the three elements of an informal marriage set forth in

section 1.91(a)(2) no later than one year after the relationship ended. The elements are (1) an agreement to be married, (2) after the agreement, the couple lived together in this state as husband and wife, and (3) the couple represented to others that they were married. The 1989 amendment defines the burden of proof for informal marriages and eliminates the ability of courts to simply infer an agreement to marry from evidence that they lived together as husband and wife and represented to others that they were married.

One commentator described the effect of the 1989 amendment as follows: Rather than abolishing the doctrine of informal marriage as had been proposed on numerous occasions in the past, the legislature tightened the rules for reliance on the doctrine by repealing the provision that allowed a court to infer an agreement to be married from proof of cohabitation and holding-out. This amendment, therefore, raises the question of how the elements of agreement may hereafter be proved. In the future one of two basic fact patterns will develop depending on whether both parties are living.

If both parties to the alleged informal marriage are alive, one of them will commonly deny the agreement. When the other party to the alleged informal union offers direct evidence of an express agreement to be presently married, the trier of fact will be required to weigh the testimony in the context of other evidence of the relationship. If one of the parties is dead, the survivor will be required to meet the limitation imposed by Evidence Rule 601(

b) by providing corroboration of an alleged transaction with the decedent. Under most circumstances the proponent of the marriage will have an easier case in the latter instance unless .there is convincing evidence that the decedent denied the existence of the agreement. If evidence of an express agreement to marry is not offered, the fact finder will have to treat the facts of cohabitation and holding-out as circumstantial evidence of the agreement in order to find a tacit agreement to be married. This process is, however, virtually identical to the prior process of inference.

But by repealing the provision authorizing the fact-finder to infer an agreement from proof of two elements of an informal marriage, the legislature has not excluded a finding of a tacit agreement to be married. In making such a finding, however, it seems that the evidence of holding-out must be more convincing than before the 1989 agreement. In a society in which non-marital cohabitation for extended periods of time is far more common than it once was, the fact-finder will have to weigh the evidence of a tacit agreement more carefully than in the past.

As the statute now stands, an occasional uncontradicted reference to a cohabitant as “my wife” or “my husband” or “mine” will not prove a tacit agreement to be married without corroboration. Such a reference by the contestant of the union will, of course, be stronger evidence of an agreement than such a statement by the proponent. The non-social context of the contestant’s reference to the proponent as his “wife” or her “husband” will also receive closer scrutiny. If the statement is made in a self-serving context, the fact-finder may be expected to disbelieve the truth of the statement.

A forthright assertion of marriage with the consequence of liability (as when an alleged spouse seeks admission of the other to a hospital) may, on the other hand be far more probative of a tacit agreement to be married. Joseph W. McKnight, Family Law: Husband and Wife, 44 Sw.L.J. 1, 2-3 (1990) (footnotes omitted). But see Recent Changes, 28 Hous.L.Rev. at 1151 (The 1989 amendment “effectively abolished common-law marriage in Texas.”). “Any ultimate fact may be proved by circumstantial evidence.” State v. $11,014.00, 820 S.W.2d 783, 785 (Tex.1991); Farley v.

M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the ease.” Dallas County Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex.App.—Dallas 1991, writ denied); Walter Baxter Seed Co. v. Rivera, 677 S.W.2d 241, 244 (Tex.App.—Corpus Christi 1984, writ ref'd n.r.e.).

Proof of an agreement to be married may be made by circumstantial evidence or conduct of the parties. “[I]n order to establish a common law marriage as a matter of law, it is not necessary to establish each element by direct proof, as each element may be established by circumstantial, as well as direct, evidence.” Tompkins v.

State, 774 S.W.2d 195, 208-09 (Tex.Crim.App.1987), cert. granted, 486 U.S. 1053, 108 S.Ct. 2818, 100 L.Ed.2d 919 (1988), judgmt aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989). “Marriage, whether ceremonial or common-law, although the character of the evidence might be different, is proved as any other fact might be proved.” Tompkins, 774 S.W.2d at 209. See Estate of Claveria v. Claveria, 615 S.W.2d at 166. Proof of cohabitation and representations to others that the couple are married may constitute circumstantial evidence of an agreement to be married.

However, the circumstances of each case must be determined based upon its own facts. We conclude that

section 1.91, as amended in 1989, does not require direct evidence of an agreement to be married in order to establish a common law marriage, but that the agreement may be proved by circumstantial evidence. III. Although an agreement to be married may be proved by circumstantial evidence, it is subject to legal and factual sufficiency review on appeal to the court of appeals and legal sufficiency review on appeal to this court. See, e.g., Estate of Claveria v. Claveria, 615 S.W.2d at 165-67; Winfield v. Renfro, 821 S.W.2d 640, 645-46 (Tex.App.—Houston [1st Dist.] 1991, writ denied).

However, there must be legally and/or factually sufficient evidence concerning each element of a common law marriage. A finding that there is legally and/or factually sufficient evidence of cohabitation and public representation will not necessarily constitute legally and/or factually sufficient evidence of an agreement to be married. There must also be legally and/or factually sufficient evidence of an agreement to be married which may include direct and/or circumstantial evidence. In Russell v.

Russell, the court of appeals considered whether there was legally or factually sufficient evidence to support the trial court’s finding that a common law marriage existed. The court held “that the evidence which we have recited clearly shows eohabi-tation and holding out, and is, standing alone, sufficient for our overruling ... [James Russell’s] no evidence point.” 838 S.W.2d at 915-16.

The court further held that the “evidence of holding out to be husband and wife, brought about at the insistence of ... [James Russell], was evidence of sufficient weight for the trial court to ‘infer’ an agreement to be married.” 838 S.W.2d at 917. Assuming that legally or factually sufficient evidence of cohabitation and public representation existed, the court erroneously failed to consider whether there was legally or factually sufficient evidence of an agreement to be married and erroneously inferred an agreement to be married. In Lorensen v.

Weaber, the court of appeals considered whether there was legally sufficient evidence to support the trial court’s finding that a common law marriage existed between the parties. The court of appeals held that there was no evidence that the parties agreed to be married, stating that “[w]hile it is unclear how specific the evidence of an agreement to be married must be after the statutory provision allowing inference of an agreement was repealed, it is clear that such evidence does not exist in this case.” 840 S.W.2d at 647.

However, it is unclear whether the court considered any circumstantial evidence when it determined that there was legally insufficient evidence of an agreement to be married. In Russell v. Russell, the court erroneously failed to consider whether there was legally or factually sufficient evidence of an agreement to be married and erroneously inferred an agreement to be married. Before this court, Russell asserts that the court of appeals misconstrued the effect of the 1989 amendment to

section 1.91 and erred in finding that there was legally and factually sufficient evidence to support the trial court’s finding that a common law marriage existed. In Lorensen v. Weaber, it is unclear whether the court considered any circumstantial evidence when it determined that there was legally insufficient evidence of an agreement to be married. Before this court, Weaber asserts only that the court of appeals misconstrued the effect of the 1989 amendment to

section 1.91. Since Russell will probably involve factual sufficiency questions and Wea-ber did not assert a legal sufficiency challenge in this court, the entire causes are remanded to their respective courts of appeal. Accordingly, we reverse the judgments in Russell v. Russell and Lorensen v. Weaber and remand those causes to the Ninth and Fifth Courts of Appeal for further proceedings consistent with this opinion. PHILLIPS, C.J., and DOGGETT, CORNYN, GAMMAGE, ENOCH and SPECTOR, JJ., join in the opinion and the judgment. GONZALEZ, J., joined by HECHT, J., dissents. .

One of the dissent's primary complaints appears to be that this court has failed to provide a "bright line” test concerning the evidence which docs and docs not constitute circumstantial evidence of an agreement to be married. However, as in most evidentiary matters subject to legal and factual sufficiency review, each case must be evaluated based upon its own facts and no "bright line" test may be applied. . The dissent erroneously argues at great length that this court is ignoring the 1989 amendment to

section 1.91 and is interpreting the amendment as having no effect on the proof required by

section 1.91. Before the 1989 amendment, the existence of an agreement to be married was effcctively presumed upon proof of cohabitation and public representation. However, after the 1989 amendment, the existence of an agreement to be married must be proved either by direct or circumstantial evidence. In addition, the dissent is attempting to further amend

section 1.91 to add the requirement that an agreement to be married must be proved by direct evidence and may not be proved by circumstantial evidence. .Contrary to the dissent's assertion, this court has not misread the court of appeals' opinion in Russell v. Russell. . The court did not consider evidence of cohabitation because "the evidence clearly supports far more than a mere passive cohabital relationship between ... [James and Margaret Russell]. The evidence shows that ... [they] lived together for long periods of time.” 838 S.W.2d at 916. .

We express no opinion concerning the legal sufficiency of the evidence in either cause. . The dissent also erroneously implies that Flores v. Flores, 847 S.W.2d 648 (Tex.App.—Waco 1993, writ denied) is inconsistent with the court's opinion. Flores recognized "that the plain meaning of the statute [section 1.91], as it now exists, allows proof of an agreement to be married by direct evidence, by a combination of direct and circumstantial evidence, or by wholly circumstantial evidence.” Id. at 652.

The court then proceeded to review the record to determine whether there was legally sufficient evidence of an agreement to be married. The court concluded that the evidence was legally insufficient to support an agreement to be married. Id.