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.
Does Florida Have Common Law Marriage?
Although common law marriage still exists in some states, Florida is not among them. The Florida Legislature expressly disallowed common law marriage in 1967. Any attempted common law marriage created after January 1, 1968 is null and void and has no legal effect in Florida.
Common law marriage is a form of marriage that occurs without a ceremony or license, but only when one is not required. It requires the parties to satisfy the conditions for a legal marriage as to the parties’ capacity and the intent to marry. The rationale for common law marriage is that marriage is a social institution and that there is no need for an official or ceremonial act between the parties to be legally married.
Many people mistakenly believe that living together with your partner for some period of time transforms your cohabitation into something more. People also mistakenly believe that presenting yourself as married (to others outside the relationship) or using the same last name as your partner is enough to validate your common law marriage. Others believe that the federal Defense of Marriage Act (DOMA) still guarantees a federal common law marital existence.
There are only eleven states where a common law marriage may still be determined in certain circumstances, including Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas and Utah. In other states a common law marriage will be recognized only as a defense, essentially rendering it unenforceable, due to the strong public policy against recognizing a common law marriage in most states.
When two parties enter into a common law marriage, the conditions are very much the same as for a ceremonial marriage: legal capacity, intent to be married, a competent and disinterested witness at the entry into marriage, the public recognition of the relationship, and cohabitation.
How Long for Common Law Marriage?
Florida does not recognize common law marriage, and Florida has not recognized common law marriages since the late 1800’s. As with many other misinformation regarding common law marriage syllogisms, some people (including lawyers) still believe that placing two years as a requirement on the issue may somehow allow for a common law relationship to be valid under the law. Some believe that there is a Florida statute that provides what is required for a common law marriage. Unfortunately for these people, the Florida Family Law statute in question (F.S. 741.211) was repealed in 1968. In short, there is no common law marriage in Florida, and the standard of two-years living together does not create a common law marriage in Florida.
Having a common living situation, and paying bills together, will not help you to prove that you are married for property division purposes once you decide to separate. Be sure to contact an attorney who can help ensure that your rights are protected and that you do not fall victim to an ex-spouse who may try to steal all of your belongings because you thought you were married.
States that Recognize Common Law Marriage
In addition to Florida, there are a number of other states that recognize common law marriage within their jurisdictions. Some of these states have specific requirements that must be met in order for a common law marriage to be deemed valid. These requirements can vary widely from state to state.
Alabama: In Alabama, the only requirement for common law marriage is a mutual intent to be married, along with living together and holding out as a married couple. However, any common law marriage entered into after January 1, 2017, is deemed invalid.
Colorado: In Colorado, a common law marriage is valid if both parties have the legal capacity to enter into marriage, intend to enter into the marriage, and hold themselves out as a married couple. Capacity requirements include being of sound mind, over the age of consent, and unmarried to another person. Like Florida, Colorado does not require a set period of cohabitation for a common law marriage to be valid.
District of Columbia: To enter into a common law marriage in the District of Columbia, both parties must agree to marry and hold themselves out to the public as a married couple. There is no minimum period of time that the couple must live together; a couple can become common law married in the District of Columbia in as little as a weekend.
Georgia: A common law marriage is recognized in Georgia if the parties have the mental capacity to enter into a marriage, agree to marry, and hold themselves out to the public as a married couple. Georgia requires a showing of permanence in the parties’ intention to marry. Additionally, a common law marriage cannot be created if all the requirements for a ceremonial marriage exist, except for the due solemnization.
Idaho: Idaho recognizes common law marriage if both parties possess the physical and mental capacity to enter into a marriage, and have a present intent to be married. However, a common law marriage entered into after January 1, 1996, is void.
Kansas: To enter into a common law marriage in Kansas , both parties must be of sound mind and suffer no legal disabilities to marriage. They must also mutually consent to the marriage and hold themselves out to the public as a married couple.
North Carolina: In North Carolina, an agreement to marry is needed, as well as the legal capacity to marry and continuous cohabitation. North Carolina also imposes a requirement that the agreement to marry must be permanent and that the couple hold themselves out as a married couple.
Ohio: Ohio recognizes common law marriage if both parties were of the legal age to marry (which is at least 18 years old in Ohio), are mentally competent to marry, can be married under the laws of Ohio, and agree to enter into a marriage. There is no minimum period of cohabitation and no provision for the formal dissolution of the marriage.
South Carolina: To establish a common law marriage is South Carolina, two parties must have the legal capacity to marry and an agreement to be married. In addition, the couple must have cohabited continuously and openly, a present intent to be married, and one party must have the ability to support the other.
Tennessee: In Tennessee, a common law marriage requires mental capacity and lack of legal disability to marry, an express or implied mutual agreement, and full and unambiguous public reputation of husband and wife. Equality existed between the two parties.
Texas: To establish a common law marriage in Texas, there must be evidence of agreement to be married, a holding out as a married couple, and cohabitation. A spouse may be able to bring a claim for common law marriage while the couple is still together, so long as one spouse has the intent to bring such a claim.
Utah: In Utah, a common law marriage can be created by having the capacity to marry, a mutual agreement to enter into the marriage, and holding out as a married couple. There is no minimum period of residence required in Utah.
Again, Florida is not one of the states listed above. Florida has done away with common law marriages, requiring all marriages from and after January 1, 1964, to be validly solemnized.
Other Legal Options in Florida
While legally recognized marriage offers many legal benefits and security, some couples may choose not to marry. Florida does not recognize common law marriages. However, Florida residents have other legal alternatives available to them. These can take the form of a cohabitation agreement or a domestic partnership agreement. A cohabitation agreement is a contract between cohabiting spouses that establishes both financial rights and responsibilities stemming from the living arrangement the two have freely entered into. An agreement like this may establish the distribution of assets and liabilities during the partners’ respective lives, such as who pays the costs of household expenses. A cohabitation agreement can also govern what happens to those assets in the event one of the partners dies. If the existence of a cohabitation agreement can be proven, it may be admissible in probate court and enforceable by the probate court. However, a cohabitation agreement is not entitled to the same presumption of enforceability that governs prenuptial agreements, nor is it governed by equitable distribution principles.
A Domestic Partnership Declaration may also be an alternative. A domestic partnership is not to be confused with a common law marriage. It is only an acknowledgment of a relationship in which two unmarried persons are committed to one another in a long-term reciprocal and continuing exclusive relationship of mutual caring. It must be a non-platonic relationship. For example, a friendship alone will not suffice. A non-platonic relationship must include more than an economic interdependence. Thus, each party is recognized as a heir of the other. Domestic partners must agree to obtain and maintain primary health insurance coverage on behalf of their partner, or else the uninsured partner can obtain that insurance through COBRA. A domestic partnership may also impact a domestic service agreement, such as one for the right to visit a commit tenant in a hospital.
Clearly, there are a few alternatives under applicable Florida law. The protections afforded by a legally solemnized marriage, at least in part, are available to couples who choose to live together.
Conclusion
For all the reasons mentioned, even if you believe yourself to be married under common law, it is important to consult with a family lawyer to discuss how Florida will view your relationship. Florida non-recognition of a common law marriage can have many consequences in the event of a breakup. You may have believed that you would be entitled to certain rights as a spouse, such as equitable distribution of property and alimony, but you may have no legal entitlement to these things if there was no legal marriage.
In addition, if you have minor children with your partner, you are not married and then decide to separate , there is no presumption of joint custody for the children. If you are not married, there is no legal presumption that you share equal parental rights for your children. This can have many ramifications. Under Chapter 61, Florida Statutes, if you are married, then you are "natural guardians" for your minor children. If you are only cohabitating but not legally married, then you are not natural guardians and, more importantly, you do not have equal rights to determine the primary residential parent for the children, decision making, etc., which can impact on where the children live, among other things.