What is Common Law Marriage?
Common law marriage is a contractual, non-ceremonial marriage between two parties that has been recognized in some states as a legal option for couples who wish to be viewed legally as married without going through the traditional process. Although common law marriage has been around since the Medieval era in Europe, the first statutory common law marriage laws were not passed until around the 1800s. The reason behind the advent of common law marriage was to provide legal protection for women through a non-ceremonial marriage, which gave the woman certain legal privileges that usually only be offered in the form of a traditional marriage. These included such rights as the ability to jointly inheritance in the absence of a will, possibly influencing property ownership, and away for married couples to temporarily reside apart from each other without being seen as legally separated.
This non-ceremonial form of marriage typically requires several elements to occur for the marriage to be considered valid. First among these elements is that the two parties must mutually consent to the arrangement. To be considered an equal partner within this type of relationship, both parties must seek to be legally bound to the other under mutual consent, although what this mutual consent looks like varies depending on the state. Second, the two parties must have the intent to be seen as a married couple within the eyes of the law. Third, the relationship must have the typical elements of a traditional marriage, including a shared residence, a continuing relationship, and the ability of the parties to carry on the relationship publicly with the intent of presenting themselves as a legal couple . Fourth, the parties must be of legal age as defined by the state in which they reside. Finally, neither party can be married to anyone else and must be free to marry without any form of coercion or force.
Although common law marriages are no longer being created in Florida, some couples may still enter into a common law marriage through another state if they left Florida. The marriage would then be recognized by the State of Florida under the full faith and credit clause within the Constitution. The couple would usually be required to demonstrate that they intended to establish their relationship as a legal marriage under the law of the state where it was formed. This could be, for instance, the same state where the couple began the divorce.
The theory behind the concept of common law marriage is that it exists in order to allow an unceremonious marriage if it is reasonable to expect that the couple is legally married in all ways but not officially through a ceremony. This means that if a couple were to share a home and begin living life as a married couple, such as by filing joint tax returns, that the State of Florida would look at the relationship like it was a legal marriage even without a ceremony.
Common law marriage is not a flat-out option for everyone. For instance, some states do not recognize its ability to form an on-the-books marriage. There are also some specific state-law criteria connected to common law marriage that must be met, such as age, mental competency, and the absence of coercion or force. Additionally, some lawful religious or legal reasons for not registering the marriage must exist, such as when a couple is prevented from registering or having a ceremony where the wedding would typically take place.
Historical Links to Florida
Historically, Florida did not recognize common law marriages between its residents, even before the 1976 amendment to its Constitution. Citing a specific policy against common law marriages, the Supreme Court of Florida in 1968 held that persons who were married according to common law in another state could not seek a divorce in a Florida court: "We see no reason to change our views on [common law]. Florida’s public policy in upholding marriages rests heavily on those attended by solemnization. We will continue to recognize such solemnization as a condition precedent to entitle the parties to a marriage to obtain a divorce in Florida." Radding v. Radding, 209 So.2d 244 (Fla. 1968). In other words, unless the common law marriage occurred over state lines and met the criteria of that state, Florida did not grant recognition to the relationship. Following its tradition, the Department of Vital Statistics Division of the Florida Department of Health recommends that "Any person seeking to have his or her Common Law Marriage recognized in Florida should seek legal counsel." This attitude changed dramatically when the Amendment took effect. Article 11 Section 5 of the Constitution of the State of Florida now specifically "reject[s] a common law marriage as a type of marriage." Instead, it prescribes the kind of solemn requirements that must be met in order to achieve the legal status of a "marriage," and extols the sanctity of the marriage bond. An important piece to the puzzle of the historical context is that the Florida Legislature has never enacted a statute that prohibits common law marriages within the state. This is in sharp contrast to many other states adopting the Florida rule after its adoption. Because this policy change into the Constitution was so drastic, it is reasonable to note that the Legislature did not act because it felt that the self-executing nature of the rule answered all concerns.
Current Florida Law
Currently, common law marriage is not recognized in Florida. The 39th session of the Florida Legislature enacted F.S. § 741.211, effective January 1, 1968, abolishing common-law marriage in Florida. All provisions and portions of the common law in conflict with the statute were thereby abrogated. Under the statute, "’Common law marriage,’ in existence in Florida before the effective date of this law, may be altered or terminated only by dissolution of marriage, divorce, or death." (The provision was originally codified at Fla.Stat. Ch. 65.21 (1967) and was renumbered to Fla.Stat. Ch. 741.211 in 1971.) Since the 1968 abolition of common law marriage, the common law marriage doctrine remains a relic of ancient law as it existed in Florida prior to the 1968 statutory abolishment. After 1968, any common law marriage that began after January 1, 1968 is invalid as a "common law marriage" because the state now prohibits the entry into a common law marriage relationship.
Effects for Florida Residents
Unlike other states, Florida does not recognize common law marriage. This means that many people living together in Florida may be considered legally single even if they have been together for many years. The status of a couple as single when living together can have significant implications, particularly in the event of a separation. Common law spouses, where recognized, have a marital interest in property acquired during the period of marriage.
If a couple residing in Florida has been together for several years and they have amassed numerous assets and liabilities during their relationship, in the event of a break-up, an equitable distribution of marital assets and debts will have to be determined. Because Florida does not recognize common law marriage, the couple will not be considered married; thus, there can be no equitable distribution of any property they own jointly. Not only will any property titled in one person’s name alone not subject to equitable distribution and only be available to pay that person’s debts, but any jointly held property cannot be divided pursuant to equitable distribution if the couple is considered unmarried under Florida law.
Similarly, upon the death of one of the partners, it may be difficult to determine the deceased partner’s intent where he or she failed to create a Last Will and Testament. The couple will not be treated as married, so a spouse’s rights to inherit from his or her partner could be adversely impacted. Because the surviving partner would not be considered a spouse, he or she would not be entitled to a statutory share of the estate or to inherit the house, bank accounts, retirement benefits, or other property owned by the deceased partner. Furthermore, the surviving partner may have difficulty claiming a homestead exemption for property owned jointly with the decedent as he or she will not be considered a surviving spouse. It should also be noted that without a deed or beneficiary designation naming the surviving partner as the owner of specific property, the estate may be required to go through probate in order to transfer property to the living partner.
If a couple has determined that they would like to avoid these issues, they can consider entering into a written cohabitation agreement or cohabitation contract. This agreement or contract can contain several provisions addressing issues such as property division upon death or breakup, debt repayment, and other matters. However, if the agreement is not in writing and there are no objective indications that a common law marriage exists, the Florida courts will likely not recognize a common law marriage in regards to property disposition.
Recognition by Other States
While Florida is one of the few states in the country that has done away with common law marriages, it still recognizes common law marriages that were legally established in other states. In addition, while a common law marriage may be recognized by another state, this does not confer any legal recognition in Florida simply because the couple may have been married in the other state or jurisdiction. For example, if two people entered into a valid common law marriage in Massachusetts or Georgia (states where it is recognized) but moved to Florida, Florida will recognize their marriage as valid, even if the state of Florida does not allow for such unions to be formed today.
Moreover, even if a resident of Florida entered a common law marriage in a state where it is recognized and then moved to Florida where it is no longer practiced or permitted, the status of their marriage continues to be valid in the Sunshine State, even though marriage of that type cannot be formed after the couple’s move.
For example , if John Doe moves to South Carolina, which allows for common law marriages, and enters into a common law marriage with Jane Smith on May 1, 2013, but then moves back to Florida, which does not, he is still legally married to Jane Smith in the state of Florida, since their marriage was legally entered into in an approved state in the United States. Note that the above theory works regardless of whether the couple has moved from or to Florida, and the state parties move to is immaterial as Florida will still recognize as valid a common law marriage that had been entered into legally somewhere else, even if they have left that state.
In conclusion, the Florida Department of Health, Bureau of Vital Statistics does, in fact, recognize common law marriage that was lawfully entered into in a state where it is permitted, and will permit one or the other of the two parties to have the notation added to their Florida marriage license or certificate.
Common Myths
Common law marriage is not recognized anywhere in Florida. It is a hefty legal term to describe a relationship between a couple where they share a residence, have been together for a significant period of time, and hold themselves out to be married, but without a formal license or ceremony. In some states, this type of relationship can result in the legal status of husband and wife, but not in Florida.
Florida law currently does not recognize common law marriage. However, if a couple established a common law marriage in a different state that does recognize it, then the State of Florida will honor the marriage so long as it was legal where entered into. Similarly, if a couple who married in a state with common law marriage later moves to Florida, that marriage is permitted.
The most common misconception we hear is that if you are living with a partner for a number of years and refer to them as your spouse or even refer to each other as husband and wife, you are considered married. That is not the case. In the eyes of Florida law, you are not married until your actually enter into a legal Florida marriage.
Consulting an Attorney
Consulting a qualified legal professional is always recommended to address your specific issues regarding common law marriage , or any other family law matter in Florida. Issues such as alimony and child support are covered by statute in Florida but the remedies are fact intensive – meaning that there are often exceptions to general ideas. It is best to consult with counsel to understand what factors may dictate a different result in your specific case.