Is Common Law Marriage Recognized in Florida?
Florida courts have not allowed or recognized common-law marriages since 1968. Florida Statutes section 741.211 ("Recognition of Common-Law Marriage") states "There shall be no common law marriage contracted after January 1, 1964, recognized in this state." While Florida law does not permit or recognize common law marriages, Florida law does allow common law divorce. Individuals in a common law marriage may petition the court to divide their assets and debts and to seek alimony. There is no waiting period to file for divorce from a common law marriage; however, it can be more difficult to establish the duration of marriage when there is no marriage license, marriages certificate or cohabitation agreement.
Common law marriages were once similar to solemnized marriages in that they established the same duties and obligations between property-owners. The difference is that a solemnized marriage must be accompanied by a marriage license and solemnized in front of witnesses and appointed person. If you and your significant other moved in together or held yourself out to the world as a couple but never obtained a marriage license, does that make you and your partner legally married under Florida law? Florida does not recognize common law marriages entered into after January 1, 1964, meaning that how long you and your partner have lived together will not affect whether or not you may petition the Court for a divorce .
It is important to note that prior to 1964 there was no uniform statewide law regulating marriage license use and solemnizations. Whether a couple got married through a common law marriage, religious ceremony or civil service depended on the municipality’s laws. As a result, Florida’s common law marriages still exist by survival through acquired marriage rights until the 1968 repeal. In 2016, Florida’s Fourth District Court of Appeal addressed whether the recognition of common law marriages before 1964 would violate the Equal Protection Clause of the United States Constitution. The Court held that doing so "would be inconsistent with the general purpose of the repeal statute . . . which was to discontinue the ‘public policy’ of recognition of common-law marriages." In 2017, Florida’s Third District Court of Appeal also determined that Florida would not recognize same sex common-law marriages entered into in other states prior to the repeal of common law marriages.
A common law marriage will not have impact on shared assets on the death of one of the spouses. The decedent spouse’s estate may be examined to determine what assets were owned by the decedent spouse at the time of death. While a solemnized marriage between spouses typically will remain legally recognized after the divorce decree is issued, that is not necessarily the case for common law marriages.
Criteria for Common Law Marriage
Common law marriage is based on the general premise that the couple must hold themselves out as married in public and have the intent to be married, all without any other representation, such as a marriage license or official recording of such license. In jurisdictions that allow common law marriage, in order to establish a common law marriage there must be evidence ‘beyond a reasonable doubt’ of the following in order for a common law marriage to be shown:
- The parties must be of sufficient legal age to enter into a marriage if a ceremony were performed;
- The parties must not be related by blood.
- The parties must hold themselves out to be a husband and wife through their actions with the public. This can be shown in a multitude of ways, including but not limited to the following:
a. the parties must reside together;
b. the parties should represent to the world that they are married. This is typically shown through their conduct, which may include filing joint tax returns, using the same last name, or attending social events as a couple;
c. the parties must demonstrate a mutual intent to enter into a marriage;
d. the parties must hold themselves out as a married couple as a matter of law; and
e. the parties must intend to permanently reside together.
4. The parties must exist in a supportive relationship; and
5. There must be evidence of mutual consent to the marriage. This can also be shown through a multitude of ways, including but not limited to the following:
a. The parties must jointly perform some marital act. This can include but is certainly not limited to sharing a common house-hold with his or her partner; working with his or her partner to create a common household; helping to support his or her partner; doing household chores; or providing household, basic care, or maintenance.
b. The parties must share financial obligations and gain. This could be shown through each party being responsible for certain bills or banking in support of the household;
c. The parties must commit to caring for each other; and
d. The parties must confer some form of legal benefit or status to one another.
The standard by which a court can establish a common law marriage is ‘beyond a reasonable doubt’, which is the same standard a court of law would need to establish that a person committed a crime. As we can see from above, the requirements for establishing a common law marriage are very similar to the requirements for establishing a ceremonial marriage: living together; holding yourself out as a marriage couple; and intending to marry.
How Much Time is Needed to Establish a Common Law Marriage? Answer to the “How many years…” question?
Most people who have heard a common law marriage mentioned in the media or from friends and family in the past assume that a couple has had to live together for "at least a year" for a common law marriage to exist. Whether this is a year, two years, five years or more is not truly important, but the idea that a specific length of cohabitation is required for a common law marriage to be deemed valid is an absolute myth. In those jurisdictions that recognize common law marriages, the sole requirement to establish a valid common law marriage is that a couple must reside together in such a manner as to hold themselves out as a married couple and clearly intend to be married. In other words, the individual facts and circumstances must establish to a reasonable degree that the parties intend to be married. Whether you are living in Pennsylvania, Rhode Island, Colorado or Texas, a number of factors determine whether or not a valid common law marriage exists: There are additional issues that may be relevant in determining the validity of a common law marriage that are outside the scope of this article, such as the age of each party, their mental competency or capacity, their knowledge of or failure to meet and abide by procedural requirements, etc. However, in addition to these, the inquiry does not stop there. Some of the additional factors that are considered, if applicable, to determine whether the duration of the relationship can be a factor, when determining if a party knowingly entered into a common law marriage, the parties file taxes together, how long have the parties held themselves out in their community as a married couple, etc. These questions all may be asked to a fact finder such as a judge or jury, at trial, or by a claims adjustor or an attorney in order to make a recommendation to the insurance company on the validity of the claim. No matter the final outcome of such a determination, the answer to the question of how long a couple must be together in order to have a common law marriage accepted by a court is simply that there is no specific answer. While many of the questions to consider will center around the date the parties began to cohabitate, there is no set amount of time for which the parties must reside together.
What Are the Implications for Couples who Move to Florida
Generally, a couple who enters into a common law marriage in another state cannot simply move to Florida and be recognized as married here. Such a couple, however, may file a petition for dissolution of marriage (in other words, a divorce) here in Florida based on his or her common law marriage entered into in the jurisdiction that recognizes common law marriage . The court will recognize the common law marriage in the same light as a formal marriage that meets all the requirements of law for the issuance of a marriage license. But the question of when the couple actually became married is a question for the Court that must be proven by the party raising the issue.
Other Options besides Common Law Marriage in Florida
Alternative Forms of Legal Relationships
In lieu of common law marriage, unmarried couples in Florida have alternative legal arrangements that could be beneficial, such as a domestic partnership or a cohabitation agreement. Domestic Partnership is a legally recognized relationship in which two individuals share a residence and perform various financial obligations together. A domestic partnership does not establish a marriage. The relationship is more akin to a life partnership where the engaged parties intend to remain or remain in an intimate relationship that closely resembles a marriage, without the legal requirements of a marriage license or ceremony. Domestic partnerships afford numerous benefits and obligations similar to marriage. For example, partners may elect to be extended family members under Florida state employee health insurance plans, receive visitation rights to be able to see a partner at a hospital and/or make life support decisions. If two unmarried people are domestic partners, they may be entitled to pay and inherit estate taxes in the event of the other partner’s death. Another way for an unmarried couple to legally protect themselves against uncertainty or disagreement is a cohabitation agreement or cohabitation contract. A cohabitation agreement functions similar to a prenuptial contract. The contract is established prior to commitment to help protect each party’s property and assets. Generally, the contract uses prenup information to establish property and asset division, alimony and spousal support. Both parties must have a full understanding and agree to the provisions in the cohabitation agreement.
Legal Assistance for Establishing your Relationships within Florida
As such, obtaining the legal advice of a qualified lawyer is highly recommended for couples worried that their cohabitation has transformed into or may be viewed as forming a common law marriage , or otherwise want to determine whether a legal marriage or domestic partnership is needed to formalize their union under Florida law.