What is a common law marriage?
Common law marriage is an arrangement in which a couple is legally considered married, even though they did not participate in a formal marriage ceremony. Couples who are considered legally married under common law have usually lived together continuously for a significant period of time and hold themselves out to be husband and wife. Common law marriage is said to have originated in the British Isles dating back to Anglo-Saxon times, when it was legal for a man and a woman to get married without a formal ceremony as long as they lived together, referred to each other as husband and wife, presented themselves as an "established couple" to their friends and family, and had children . The religious belief at the time was that marriage was based on a "contract in the sights of God" and no other formalities were necessary.
Some states still recognize the concept of common law marriage. Upon meeting certain requirements, couples are considered legally married under common law, and then granted the same legal rights, privileges, and obligations as married couples. In order to be considered in a common law marriage, the couple generally must have:
The requirements of common law marriage vary by state. In Florida, a couple who simply lives together does not meet the requirements for common law marriage.
The legal standing of common law marriage in Florida
Historically, when a couple lived together for an extended period of time, paid bills together, and otherwise comported themselves as husband and wife, they would be considered "common-law" married. Many states allowed common law relationships to be established under such facts, but this is no longer the case in Florida. Florida enacted a statute in 1968 that prohibited the creation of a common law marriage in Florida. The statute (located in Section 741.211 of Florida’s Statutes) states: "A marriage license issued in accordance with this chapter shall authorize only a ceremonial marriage . . . No common-law marriage is valid or recognized in this state." The Florida statute makes no exceptions to the prohibition of common law marriages, therefore a common law marriage would not be recognized in Florida today, even if entered into prior to July 1, 1968 (when the statute was enacted).
History of common law marriage in Florida
Prior to the 1967 decision of the Florida Supreme Court in the case of Gahagan v. Dunn, 195 So2d 198 (Fla. 1967), Florida recognized common law marriages. Generally, these were common law marriages which had been created in some other state and the couple moved to Florida without dissolving the relationship before moving to Florida. In fact, a big issue in many Florida divorce cases is whether a couple created a common law marriage elsewhere and moved to Florida before dissolving the relationship.
Florida became a place where many people came to retire and divorced couples came to start over. It was then that many relationships were created and recognized as common law marriages. And at that point there were no rules regarding what a common law marriage was. Many people believe that in a common law marriage that you have to live together for seven years before it is recognized. That is not true. There was no set time and in fact, there does not have to be a set time. All that was required was an agreement between the parties to meet the elements of a common law marriage which were: (1) sufficient legal capacity, (2) free interspousal consent, (3) an actual contract in praesenti, and (4) a bona fide, cohabiting residence.
In Gahagan, the court now had to decide whether to abolish the common law marriage in Florida. The court approved a decision of the District Court of Appeals which said it was repealed by operation of law when the Legislature enacted the Family Law Reform Act. The act specifically stated that a ceremonial marriage to begin a marriage contained certain things, to include written consent to marry by the woman who was of legal age, posted banns where a solemnization would occur, a witness present at such solemnization, and a public exchange of the marriage vows. As a result, after the Family Law Reform Act was passed, those people living in Florida did not have to get married, they could live together as husband and wife. Common law marriages were essentially extinguished in Florida.
In 1995, the Florida Supreme Court abolished the practice of common law marriage in all but two counties in Florida. The two counties that still allowed it were Dade and Monroe counties. These counties specifically allowed common law marriages to be created until the couples established a residence in another county. Once a couple moved from Dade or Monroe Counties and made their residence in another county, the common law marriage relationship was extinguished.
In 1997, the Florida Legislature eliminated the last two counties that allowed common law marriages. This ended common law marriages in Florida. Therefore, unless an individual can establish a married by common law situation prior to January 1,1998, then they can no longer create a common law marriage.
Impact on Florida couples
For the purposes of succinctness, this article will only address the most common dilemma – how does a couple moving to or relocating to Florida deal with their common law marriage in their state? Florida does not recognize common law marriage. Therefore, if a person enters a common law marriage in another state and then relocates to Florida, Florida may not recognize that person as married, and may consider him/her single under Florida law. This can lead to many inequitable results, particularly if the parties attempt to separate while residing in Florida. In that case, they may be held as legally single and therefore lose all rights of equitable distribution. Moreover, as previously discussed, alimony temporarily awarded during the marriage may not be enforceable once the parties are separated while living in Florida.
Alternatives to common law marriage in Florida
There are, as of late, several new legal alternatives to common law marriage in Florida. One is the domestic partnership which gives couples protection similar to what they would have if there was a common law marriage. Domestic partnerships exist throughout the state and can be useful in carrying out directives in the event of incapacity. The domestic partnership can be established by way of cohabitation agreement. A typical cohabitation agreement lists all the property that is owned and all the debts that each person has and the distribution of those items should the cohabitation end. Cohabitation agreements can also address household expenses , finances and post-separation support.
If a couple’s reason for being in a common law marriage is for the economic security of the surviving spouse, then a provision for the couple in a will can provide for the surviving partner. Same sex couples, despite the recent decision extending federal recognition to them, may need a will and other estate or inheritance plan in place once they decide to relocate to a state like Florida that does not recognize same sex relationships. Other alternatives include health care directives. Without a living will, someone may attempt to assert themselves over the wishes of a partner for health care decisions.
How to safeguard your rights in Florida
When it comes to common law marriage in Florida, it is vital that couples protect their legal rights and interests, even if the concept of common law wedding does not formally exist in the state. Since becoming unions via common law is not legally recognized, all marital agreements must be put to writing to be enforceable. If spouses have children in a long-term relationship it is often a good idea to set up a co-parenting contract that sets out the expectations for child rearing duties.
Couples entering a common law arrangement may also need to draft cohabitation agreements that specify how assets will be divided in event of separation. Cohabitation agreements become especially important when the couple has children, since custody of minor children can lead to a protracted legal battle if property division is in dispute. Consulting a family law attorney early on to draft a cohabitation agreement and co-parenting contract can establish firmer property rights for both parties. The attorneys can help review or create two sets of documents to protect the legal rights of each party in the event the "marriage" should dissolve or if there are issues in child custody.
Future of common law marriage in the U.S
The future of common law marriage recognition in the United States is uncertain as states continue to enact legislation to end or curtail its use. The trend of eliminating common law marriage provisions has been on the rise since the mid-20th century and is likely to continue into the future. However, some states still recognize the practice, leading to a patchwork of regulations across the country.
In 2018, five states—Texas, New Hampshire, Montana, Utah, and South Carolina—allowed for common law marriage, though with various requirements. These states either require a declaration of their relationship or also considering the length of cohabitation, the couple’s intent, as well as other evidence. Overall, changes to common law marriage provisions and their recognition are likely to be slower and more piecemeal as a result of individual state laws.
As Florida has never recognized common law marriage , the outcome of future judicial or legislative actions on this issue will not immediately affect the state. However, Florida residents may still encounter common law marriage issues in situational circumstances. For example, the enforcement of a common law divorce in a different state might explain the implications of an out-of-state separation on the couple’s Florida property division.
The prevailing trend nationally to eliminate new common law marriages signals a shift towards more formalized legal standards. While the future of common law marriage in the United States is on uncertain ground, the lessons that arise to face the unique considerations of legally recognizing a long-term relationship outside of formal marriage underscores the need for careful examination of the consequences of these relationships.
