Does Florida Have Common Law Marriages?
Some people believe that if they have been living together as a married couple, that they have somehow created a common law marriage. Many people come to my law firm asking about common law marriage. The short answer is that no, there is no common law marriage in Florida.
Common Law Marriage has existed under English Common Law since time immemorial. In medieval England, when the best and brightest minds were asked what to do for a legal system, they created the vast and treacherous framework of Common English Law. The idea was that if you lived together and held yourselves out as husband and wife, then you were married. In fact, England codified this rule and established certain requirements. These included that the parties be competent to marry, that there be present voluntary and mutual consent, that the parties be legally capable of entering into marriage and that the parties live together continuously in a marital state.
So what happened to common law marriage in the United States? Is it alive and well in the Sunshine State?
In his book, A People’s History of the New United States, Roger Wilkins states: "Over the years, only a few states evolved from common-law marriages to a statutory view of marriage. In some states, marriage by cohabitation still continues. Indeed, Hawaii and New Hampshire still permit common-law marriages . However, until 1947 ALL states recognized common-law marriages. Since then, thirty-two states still do. Twelve states have totally abandoned the common-law marriage, while four others have altered it; a few have maintained it in limited form, and two grant it only to those who have been married elsewhere according to their laws." The current status of common law marriage in the United States differs from Wilkins’ timeline and there are seventeen states with common law marriage.
In 2016, common law marriage was abolished in Florida by statute. Common law marriages entered into prior to January 1, 1968 were still valid however.
In 2012, the Florida Supreme Court heard a case in which a man had sued for divorce from his common-law wife. By law, the wife could not introduce evidence of their marriage at trial because there was no statute allowing for common law marriage at the time of the cohabitation. The trial court held that the parties were common law married but the Fourth District Court of Appeal reversed and the Florida Supreme Court agreed. This will probably end future law suits over common law marriage, because the Court found that the restriction of the evidence violated the Confrontation Clause of the 6th Amendment.
So, there is no common law marriage in Florida.
Common Law Marriage Exceptions in Florida
The exceptions to the rule in Florida, however, are individuals who acquired a common law marriage in another jurisdiction where it is lawful and who reside in that state currently or reside in another state but have no intention of changing their residence to Florida. In that case, Florida recognizes the individual as married. Note the requirement of good faith, since in some cases, if you come to Florida from a state where common law marriage is lawful, people have abused Florida law by obtaining licenses and then claiming they were married prior to their arrival in Florida. In that situation, Florida law protects the rights of individuals who marry under the law of their state of residence. It recognizes that marriage is a fundamental right protected by the First Amendment and it also endorses the idea that states should respect the marriages of sister states and encourage stable family relationships. It would be unfair to a spouse to be deprived of marital rights simply because the parties made a mistake or did not understand the law of a new state. Further, it would be unreasonable to expect a spouse to cancel a long established marriage to enter into a new one and lose rights already acquired.
The legal consequences for same sex couples are no different than opposite sex couples who brought valid common law marriages from other states.
Common Law Marriage Rights in Florida
In Florida, the law does not acknowledge or uphold the institution of common law marriage in the same way that other states do. Therefore, there are no legal recourses available to partners in terms of marital property or parental rights if they are not married. If both partners have children, it can muddy up things quite a lot, as you cannot file for child support or visitation. Even if you have been together for a number of years, the fact that you are not technically married means that you cannot take any action in court over children. It is best to sit down and talk about these issues now, before your relationship turns sour, rather than rely on the legal system to sort things out if you decide to go your separate ways.
The situation is somewhat different if you own property together. The fact that you are not legally married means that you may have some issues when it comes to the distribution of these assets, especially when it comes time for separation. Fortunately, the legal system allows you to develop a legally binding arrangement that exists between the two of you and that will be honored by the law.
Proving Common Law Marriages from Other States
A party who claims a common law marriage that was established in another state must establish the elements of common law marriage in that other state. This can be done by providing a copy of the statute adopted by the state that establishes what elements a party must prove in order to establish a common law marriage in the other state. In many cases a party may have a valid common law marriage in another state but the other state does not recognize common law marriages . In this case, the party has an established common law marriage but is prohibited from asserting it in Florida because the other state does not recognize it. In order to make this type of claim, the party must provide evidence from the other state’s records proving that that they obtained their marriage license prior to the repeal of all common law marriage laws in that state. This proof and the judgment of that other state must not be contrary to the laws of Florida, must have been entered by a trial court that has jurisdiction over the parties, and must be based on a full and fair hearing.
Florida Alternatives to Common Law Marriage
As noted above, Florida does not recognize common law marriages as an option for relationship formation and supports this conclusion by citing to Florida Statutes which indicate that a common law marriage must have been entered into prior to January 1, 1968. However, Florida does recognize several alternatives to common law marriages if such alternative options are desired.
Some of the alternatives to common law marriage are as follows:
- (1) a court-ordered, valid premarital agreement pursuant to Florida Statutes 61.079 whereby both parties enter into an agreement prior to getting married that expressly authorizes the parties to be in a domestic partnership or is otherwise known as a prenuptial (ante-nuptial) or post-nuptial agreement or contract;
- (2) entering into a registered domestic partnership through domestic partnership ordinances (municipalities or counties may enact domestic partnership registration under specific ordinances); and
- (3) legal separation (partners file paperwork to create rights normally afforded through marriage without becoming legally married).
Florida Family Law Consultations
For those in Florida who believe they may have entered into a common law marriage or may be in the process of doing so, consulting with a family law attorney is essential to establishing or clarifying legal rights. While Florida does not confer any rights on couples living together as spouses absent some joint decision by the parties that they will enter into a common law marriage which might subject them to the rights and responsibilities of a common law relationship , there may be other actions of the parties which give rise to a common law marital right or legal standing as a result of behavior, agreement or actions of the parties which in some instances require formal legal determination or litigation.