What is Common Law Marriage?
Understanding Common Law Marriage in Florida: Myths and Facts
Common law marriage is a form of relationship in which the couple has not entered into a formal legal marriage ceremony, yet, by their actions, they have lived as husband and wife. In Florida, a couple may present themselves and hold themselves out to be married for legal and financial purposes and be treated by businesses, insurance companies, hospitals, and the like as married, yet not be married in Florida. This concept can be confusing and is often misunderstood. Common law marriage comes from Roman and English law and dates back to the 9th and 10th centuries. Under the theory of common law marriage, there are no legal regulations or procedures that apply to a marriage. The parties merely live together and act as a married couple. This concept was first adopted by the fledgling American colonies. In the early days of America, common law marriage was utilized in instances where a couple could not go through the formal process of marriage, perhaps due to a religious objection or lack of money, or for other reasons. To address this situation, the colonies recognized the validity of common law marriages. Massachusetts was the first state to enact a statute governing common law marriages. It limited the circumstances under which a marriage could be deemed valid, on the basis of common law. This trend continued as the American colonies became the independent states of America, with each state enacting its own statutory recognition of common law marriages. Today , thirteen states and the District of Columbia recognize the validity of common law marriages. The states are Alabama, Colorado, Georgia, Iowa, Kansas, Montana, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas, as well as the District of Columbia. However, unlike Florida, not all of these states require that a couple comply with a requirement of living together in order to have a common law marriage. For example, Clipper Ship Key LLC v. Perkins 98 Mass. App. Ct. 698, 534 Mass. App. Ct. 680 (2018); Zamfresca v. Director of the Office of Medicaid, 464 Mass. 27, 27 (2012). For those five states, the requirement of cohabitation is not applicable for a finding of common law marriage. In Florida, there is no common law marriage. The last common law marriage entered into in Florida prior to the abolition of common law marriage occurred on January 1, 1968, at which point the requirement of cohabitation became effective. While a common law marriage recognized in another state and prior to 1968 is not recognized in Florida, if the couple comes to Florida after the marriage has been entered, the common law marriage will be recognized if the couple continues to live as a married couple in Florida. A couple cannot create a common law marriage in Florida. Parties desiring to marry must follow the Florida statutory procedure and requirements for obtaining a marriage license and participating in a marriage ceremony. In addition, one thing that isn’t commonly known, is that there is no common law divorce. A common law married couple can divorce by participating in the statutory process of divorce.
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