¶1I respectfully dissent.
¶2The defendant (respondent in divorce action) moved for summary judgment “on the issue of common law marriage.”
¶3A defendant who moves for summary judgment has the burden to show as a matter of law that no material issue of fact exists as to the plaintiff’s cause of action (here the divorce petitioner) and movant is entitled to judgment as a matter of law. Griffin v. Bowden, 654 S.W.2d 435, 436 (Tex.1983). The defendant-movant may sustain his burden by summary judgment evidence that at least one or more of the elements of the plaintiff-nonmovant’s cause of action has been established conclusively against plaintiff. See, e.g., Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The plaintiff must establish each element of her cause of action to prevail at trial. Thus, if one element of plaintiff’s cause of action is insufficient, the defendant’s summary judgment should be granted.
¶4In this case the defendant based his motion for summary judgment on the insufficiency of two elements of plaintiff's cause of action (common law marriage giving rise to her divorce action). TEX.FAM.CODE ANN. § 1.91 (Vernon 1974). The two elements of common law marriage which the defendant must establish conclusively against the plaintiff are: the present agreement to be married and holding themselves out to the public to be husband and wife.
¶5There must be a mutual agreement presently to become husband and wife, and it must be from both sides. See, Gary v. Gary, 490 S.W.2d 929, 932 (Tex.Civ.App—Tyler 1973, writ ref’d n.r.e.). In this case the defendant asked plaintiff more than one time to marry ceremonially, indicating want of present agreement by him to live together as married. That fact was not controverted. His income tax return showing him as “single” named the plaintiff as a dependent but did not show her to be his wife. Moreover, the defendant’s summary judgment evidence shows that the parties did not hold themselves out to the public to be married, that several people in the community knew they were not married, as reflected in their affidavits.
¶6I would hold that the two elements of common law marriage have been established against the plaintiff conclusively by summary judgment proof. As to plaintiff’s argument that the proof presented by her affidavits raises a fact issue of common law marriage, this is not pertinent because of the strict proof required to establish conclusively that common law marriage exists. For if there is any want of sufficiency of proof of the elements of common law marriage, then the common law marriage cannot be proved and the cause of action fails. Therefore, under the summary judgment evidence of the defendant, I would hold he has sustained his burden of showing as a matter of law that the plaintiff *166cannot establish at least one or more of the elements of her cause of action.