Interim Decision #2677
MATTER OF GARCIA
In Visa Petition Proceedings
A-21304828
Decided by Board November 16, 1978
(1)Under the provisions of the Texas Family Code, section 1,91, a common-law marriage
may be shown by establishing three factors: (1) an agreement by the parties to be
married, (2) living together in Texas after the agreement is made, and (3) representation to others by the parties that they are married.
(2) Under the Texas Family Code, Section 1.91(b), the agreethent of the parties to be
married may be inferred if it is proved that they lived togethter as husband and wife and
represented to others that they were married.
(3) lu a Texas common -law marriage, agreement is fundamontal and cohabitation is an
element, but holding out to the public that two persons are husband and wife is
essential. McChesney v. Johnson,
(Civ. App. 1935).
(4)Where Immigration and Naturalization Service offered as jroof of a prior undissolved
common-law marriage, only the birth certificates of petilivaer's five children listing the
purported common -law husband as the father, and the petition as the one providing the
information, the proof of holding out and cohabitation was inadequate, and the petition
will be approved.
(5)Under Texas law, reputation and cohabitation are at best only presumptive proofs of
common-law marriage and where either of those grounds fails, It is not correct to build
the presumption of marriage on the other, McArthur v. Matt,
(Civ.
App. 1943).
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Robert A. Shivers, Esquire George Indelicato •
519 South Presa Appellate Trial Attorney
San Antonio, Texas 78205
BY: Milhollan, Chairman, Maniatis, Appleman, Maguire, and Farb, Board Members
The United States citizen petitioner applied for immediate relative
status for the beneficiary as her husband under section 201(b) of the
Immigration and Nationality Act, 8 U.S.C. 1151(b). In a decision dated
April 13, 1978, the District Director denied the petition on the ground
that the petitioner had entered into a previous, uradisolved marriage and
that she was not free to marry the beneficiary. The petitioner has
appealed. The appeal will be sustained.
The petitioner is a 37-year-old native and citizen of the United States_
023
Interim Decision #2677
The beneficiary is a 27-year-old native and citizen of Mexico. The parties
were married on April 19, 1974, at San Antonio, Texas.
The District Director found that the petitioner had entered into a
common-law marriage previous to her present marriage. He also found
that this common-law marriage had not been terminated. On appeal, the
petitioner disputes these findings, and asserts that the District Director
has not presented proof sufficient to establish a common-law marriage
under Texas law.
Under the provisions of the Texas Family Code, Section 1.91, a
common-law marriage may be shown by establishing three factors: (1)
an agreement by the parties to be married, (2) living together in Texas
after the agreement is made, and (3) representation to others by the
parties that they are married. Under section 1.91(b), the agreement of
the parties to be married may be inferred if it is proved that they lived
together as husband and wife and represented to others that they were
married. The District Director found that these conditions had been met
by virtue of the fact that the birth certificates of the petitioner's five
children list the purported common-law husband as the father, and that
the certificates list the petitioner as the one providing the information .
These certificates are said to substantiate the finding that the petitioner
was married to the purported husband from 1964 until 1971.
A Texas court has held that in common-law marriage, agreement is
fundamental and cohabitation is an element, but holding out to the
public that two persons are husband and wife is the acid test. McChesney v. Johnson,
(Civ. App. 1935). The only proof of
holding out offered by the Service is the birth certificates. They list a
father, but do not list a "husband." It is probably safe to say that many
such certificates are prepared where no common-law marriage exists.
As proof of holding out, these certificates are inadequate.
This conclusion is further necessitated by the holding in another
Texas case. There it was held that reputation and cohabitation are at
best only presumptive proofs of common-law marriage and where either
of those grounds fails, it is not correct to build the presumption of
marriage on the other. McArthur v. Hall,
(Qv. App.
1943). In this case, not only does the proof of holding out fail, but there
is also no proof of cohabitation. We accordingly find that a common-law
marriage under Texas law has not been established. The appeal will b e
sustained.
ORDER: The appeal is sustained and the visa petition is approved.
624
