By Benny Agosto, Jr.

I. Introduction

How many times have you heard of a case where a migrant worker from Mexico comes to Texas, to make a better life for himself and/or his family, traveling to a foreign land and leaving behind his wife and children. Many times in personal injury and/or in family law cases certain issues are raised regarding whether or not the “marital” relationship between a man and a woman from Mexico transfers over to Texas, when the couple was living like husband and wife, but never actually formally married in Mexico. That is the question that applies here.

As an example, review the following facts: a 37 year old male laborer, and migrant worker, was killed when a trench he was working in collapsed on him. Defendant, General Contractor, had a contract to remodel a church. Subcontractor, also a defendant, bid on the electric work. Part of the electric contract required a ditch to be dug for electric conduit. Subcontractor hired decedent’s employer to dig the ditch. The ditch had to be eight feet deep to allow the conduit to go under a sewer pipe which was at five and a half feet. Subcontractor instructed decedent’s employer that the trench had to be “stepped” or sloped on the sides. Decedent’s employer failed to dig the trench properly and one section collapsed, killing the migrant worker.

The decedent is survived by a “common-law” wife, three minor children, and his parents. Decedent and his “wife” had lived together for seventeen years prior to him coming to Texas. He had been in Texas for almost three years since his departure. Although decedent and his “wife” held themselves out as husband and wife, they had never had a formal wedding ceremony at neither a courthouse nor a church. The couple had never lived together in Texas, but only in Mexico.

II. Proof of Informal Marriage

The Texas Family Code in §2.401 (a)(2) states that a common-law marriage may be proved by evidence that a man and a woman have agreed to be married and after that agreement, they lived together in this state as husband and wife and they represented to others that they were indeed married.

§ 2.401. Proof of Informal Marriage

(a) In a 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 signed as provided by this subchapter; or

(2) the man and woman 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) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

( c) A person under 18 years of age may not;

(1) be a party to an informal marriage; or

(2) execute a declaration of informal marriage under Section 2.402.

A common-law marriage exists when a man and woman enter into an agreement to become husband and wife and in pursuance of such agreement do live and cohabit as husband and wife and hold each other out to the public as husband and wife. Such agreement to become husband and wife may be expressed or implied. An expressed agreement is where the parties thereto expressly agree, and an implied agreement is where the parties with reference to the subject matter as to induce the belief in the minds of the contracting parties that they intend to do that which their acts indicate they have done. See Berger v. Kirby, 105 Tex. 611; 153 S.W. 1130 (Tex. 1913); Hundle v. Nigh, 1996 Tex. App. Lexis 600 (Tex. App.-Houston [14 th Dist.], 1996) (former Tex. Fam. Code Ann. §1.91 (a)(2), which set forth the elements necessary to establish a common-law marriage, allows the Trial Court to declare that a common-law marriage existed between decedent and his partner and, consequently, that she and decedent’s son were both heirs of the estate); Ganesan v. Vallabhaneni, 2002 Tex. App. Lexis 2052 (Tex. App.-Austin, 2002) (jury instruction on common-law marriage that tracked the language of Tex. Fam. Code Ann. §2.401 (a)(2) was proper); Eris v. Phares, 39 S.W. 3d 708- Tex. App.-Houston [1 st Dist.], 2001) (although the evidence was factually and legally sufficient to prove that a man and a woman agreed to be married, and the evidence was legally sufficient to established that the two represented to others in Texas that they were married, the evidence was factually insufficient to support the required element of common-law marriage under Tex. Fam. Code Ann. §2.401 (a)(2) that they represented to others that they were married.)

It must be noted that any ultimate fact regarding this matter may be proved by circumstantial evidence. See Russell v. Russell, 865 S.W. 2d 929 (Tex. 1993) The Supreme Court stated that in cases filed on or after September 1, 1989, is proof of each of the three elements of an informal marriage set forth in (the former Tex. Fam. Code Ann. §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.

See Russell v. Russell at 932.

The question that remains unanswered is whether the above elements apply to relationships in Mexico.

III. Mexican Law Regarding Common Law Marriage-Concubinage

It is well recognized that there is no common law in the Republic of Mexico. A review of Mexican law verifies that it is a Code state, and all of the laws are found in one or more of the various codes that apply to marriages. The particular rights and status of the people, whether they are married or not, are determined by the provisions of the applicable code. The relationship called concubinage is expressly provided for in one of the codes of the Republic of Mexico, as well as in the codes of individual states, and permits the female or concubine to inherit a portion of her partner’s estate provided she can qualify under its terms, some of which are that the couple must have lived together and maintained their home for at least five years, and that such relationship must have been in existence at the time of the death of the male partner, or husband. The woman is described always as a “concubine” and in most cases the woman must make application to the Mexican State Court in order to inherit as a concubine. It must be noted that by Mexican Law a concubine inherits a lesser part than she would receive if she were a legal wife or widow. See Nevarez v. Bailon, 287 S.W. 2d 521 (Tex. Civ. App.-El Paso, 1956, writ. refused)

Webster’s Dictionary defines concubine as 1. a woman who lives with a man and among some peoples has a legal recognized position in his household less than that of a wife; 2. mistress- a woman with whom a man cohabits without benefit of marriage.

It should be said that the term “concubine” as used in Mexico does not carry the stigma ordinarily attached to the English language. It is an institution recognized by law in the Republic of Mexico, and in the relationship of hundreds of thousands of Mexican couples. See Nevarez at 523.

In the landmark case, Nevarez v. Bailon, the El Paso Court of Appeals heard a case of first impression wherein a couple had apparently entered into an agreement to live together and did so for over ten years until the death of Mr. Nevarez in 1952. The Court found that there was ample evidence that the couple cohabited as husband and wife. After Mr. Nevarez’ death, the widow Conception Nevarez, alleged that she was the common-law wife of the deceased and was entitled to inherit her portion of the deceased’s estate lying in Texas. The couple had never lived in Texas and their home was in Juarez during the entire time they lived together. The widow argued that the couple’s relationship corresponded with the common-law marriage recognized by the State of Texas.

The Court concluded that Mrs. Nevarez, who had filed documents with the Juarez court asserting that she was a concubine, could not establish this even in Mexico. For that matter, the Court found that she could not assert any claim in the courts of Texas because she could not qualify in her home jurisdiction as a surviving wife. See Nevarez at 523.

In Texas, the El Paso Court of Appeals reviewed the Mexican common-law marriage issue, and concluded that no such thing existed. However, for a woman living in Mexico (even as a concubine) whose “husband” comes to Texas to work, the only option available in a wrongful death case claim for that woman would be to proceed through the Mexican courts which allows a concubine to inherit a portion of her partner’s estate.

It must be noted that even when a relationship that begins in Mexico wherein a couple agrees to live together as husband and wife (assuming for the sake of argument that this does not constitute a marriage) once the couple comes to Texas, the relationship may become common-law marriage under the laws of Texas. If the facts are such that both parties to the relationship are legally competent to marry, and both live together as if they were married and both hold themselves out to the public as husband and wife, the elements of common-law marriage can be fulfilled. These circumstances are sufficient to raise the issue of marriage and are pertinent evidence from which a jury might reasonably infer that a contract existed which would constitute a valid Texas common-law marriage. See Flores Gonzalez v. Vuida de Gonzalez, 466 S.W. 2d 839 (Tex. Civ. App.-Dallas, 1971, writ. ref’ n.r.e.); See also Rosales v. Rosales, 377 S.W. 2d 661 (Tex. Civ. App.-Corpus Christi, 1964).

IV. Mexican Law Applied to Texas Cases

There is no doubt that Texas Courts may apply Mexican law. See In the Matter of The Estates of Garcia-Chapa, 33 S.W. 3d 859 (Tex. App.-Corpus Christi, 2000); Gardener v. Best Western International, Inc., 929 S.W. 2d 474, 479 (Tex. App.-Texarkana, 1996, writ. den’d); Nevarez v. Bailon at 522-23 (Application of Mexican law to determine heirship). So what happens then when a “common-law wife”/ concubine, who lives in Mexico, is left widowed as a result of her partners death?

Land and intestacy Mexican law issues have been applied by Texas courts. Even pre-Gutierrez v. Collins cases applied Mexican heirship law. A more recent case granted judgment as a matter of law under what it found out to be applicable Mexican law to the wife of a decedent in a dispute over proceeds of liquidation of properties held during marriage against a challenge by children of the deceased from a previous marriage. The Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l L 119 (2003).

Due to the flow of people across the Mexican-Texas border, family law issues frequently arise, and are likely to continue to arise.

One of the first things, that must be done is to file a petition in Probate Court in order to administer the estate of the decedent. By doing so, the “common-law wife”/concubine can show standing in the lawsuit. In addition, allegations of such standing can be alleged in the wrongful death suit as well. What must be alleged, is that the Mexican law regarding concubinage is to be applied.

The choice of law questions are questions of law to be decided by the trial court. See In the Matter of the Estates of Garcia-Chapa at 861. See also Duncan v. Cessna Aircraft Co., 665 S.W. 2 414, 420 (Tex. 1984). In the wrongful death matter, if suit is filed in behalf of the estate of the decedent the concubine would be able to be a taker to part of that estate if the Mexican law is applied. Certainly, it is good public policy to apply Mexican law as it regards to any rights the concubine may have in a lawsuit filed in Texas.

Therefore, if a party intends to have a trial court apply Mexican law, notice of the intent to apply Mexican law and a translation of the Mexican law must be given in a timely basis before trial. Keep in mind that a motion to take judicial notice of the laws of Mexico is also a good idea in order to have the issue before the court. The absence of a pleading or proof of law from another jurisdiction or a motion to take judicial notice of the laws of another jurisdiction, laws of other jurisdictions are presumed to be the same as those of Texas. See In the Matter of the Estates of Garcia-Chapa at 863. See also Ochoa v. Evans, 498 S.W. 2d 380, 387 (Tex. Civ. App.-El Paso, 1973, no writ.) (Mexican law of the tort of conversion is assumed to be the same as Texas law absent proof to the contrary).

V. Procedural Rules in Applying Mexican Law

Failure to follow the proper procedural and evidentiary rules may be fatal to a party’s request that a Texas court apply Mexican law. In the absence of proper proof of the laws of Mexico, Texas courts presume that the foreign country’s laws are identical to the laws of Texas. Texas courts have subject matter jurisdiction to consider choice of law and choice of forum determinations. The Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l L 119 (2003).

It must be noted that the court, not a jury, determines the laws of foreign countries like Mexico. Choice of law is a mixed question of law and fact for the trial court requiring identification of relevant contacts and a determination of which law applies. “The application of the law to the facts is a question of law.” Accordingly, appellate courts defer to a trial court’s determinations on questions of fact, and review de novo its determinations of whether Mexican law applies. A trial court’s refusal to apply Mexican law is not generally reviewable by mandamus. The Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l L 119 (2003).

A defendant moving for a “traditional” summary judgment under Tex.R.Civ.P. 166a(c) has the burden of proving that a plaintiff has no cause of action under Mexican law.

Texas Rules of Evidence 203 provides that:

A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the party intends to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all parties both a copy of the foreign language text and an English translation. The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises. If the court considers sources other than those submitted by a party, it shall give all parties notice and a reasonable opportunity to comment on the sources and to submit further materials for review by the court. The court, and not a jury, shall determine the laws of foreign countries. The court’s determination shall be subject to review as a ruling on a question of law.

Rule 203 is a “hybrid rule by which the presentation of the foreign law to the court resembles the presentment of evidence but which ultimately is decided as a question of law.” A party seeking to apply Mexican law must request that the court take judicial notice pursuant to Texas Rules of Evidence 203 at least 30 days prior to trial. The motion requesting judicial notice and application of Mexican law must be verified. The Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l L 119 (2003).

The San Antonio Court of Appeals has found that a party fully complies with the requirements of Rule 203 when the party advocating judicial notice of Mexican law provides the court with:

(4) an attorney’s affidavit concerning the grounds for applying Mexican law;
(5) a Spanish version of the Mexican Civil Code;
(6) a translated English version of the Mexican Civil Code; and
(7) sworn legal opinions of Mexico’s law by lawyers.

The Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l L 119 (2003).

Texas Rules of Evidence 1009 requires that if a translation of a foreign law is necessary, the translation must be served on all parties at least 45 days before trial.

In federal court, the primary rule is Federal Rules of Civil Procedure 44.1 (Determination of Foreign Law), which states:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.

Last, unlike Texas state court rules which clearly state that failing to timely raise the applicability of a foreign country’s law, such as Mexico, to the trial court waives its alleged applicability, federal courts have split authority on whether federal courts can consider the applicability of Mexican law for the first time on appeal. The Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l L 119 (2003).