What is a Common Law Marriage Anyway?
Common law marriage is a means of legally recognizing a new family unit, which at its core is simply an agreement between partners to be married without going through the traditional process of licensing, officiating and registering the marriage. It is a way to bypass specific components of the traditional laws governing marriage. As such, unmarried cohabitants in a common law marriage often hold the same rights as married couples with regard to property division, inheritance rights and other matters. These rights will vary from state to state, however, as not all states recognize common law marriage.
The minimal requirements for common law marriages typically include one or more of the following:
One or more of these components must also be proven through the process of dissolution. Because the rights granted to cohabitating couples varies from state to state and they are not usually clearly outlined in statutes, the dissolution of these unions is often a legal and financial headache for the parties , often leading to protracted litigation.
The most widely recognized requirement for common law marriages is that the couple must cohabit in the home for some "reasonable" period of time. This length is difficult to define, as it can be highly subjective – but in many states, more than two years of residency together requires this relationship to be defined as a common law marriage. Some states define this as a living arrangement for at least six months, while others only require a few weeks or months.
Other requirements for common law couples include having the intent to marry, having the consent of both parties to enter into the union, proving the ability to enter into a formal marriage, having the ability to do so in the state in which the couple resides, and many others.
To have a common law marriage in Florida, a couple must share a residence, agree in front of witnesses to be married and intend to be married. They must also hold themselves out to be married in public.
Common Law Marriage and Florida
A common law marriage does not require any particular form of ceremony or license in the state of Florida. However, the state does not recognize a common law marriage as a valid form of marriage. The common law marital doctrine was abolished by the Florida legislature in 1968 when the Senate Bill 1954 to amend F.S. 741.211 was signed into law. Current Florida Statute 741.211 does provide some circumstances in which common law marriages were valid under prior to 1968 may still be deemed valid in the state of Florida; however, post 1968, a common law marriage is not recognized in the state of Florida.
Common Law Marriage Alternatives in Florida
While common law marriages are not recognized in Florida, there are legal alternatives available for couples who wish to enjoy the legal benefits of marriage. For those who have resided in Florida long enough to have become residents by some other legal means, but who do not want to dissolve their current marital status, two options may be available: domestic partnerships and cohabitation agreements.
Under Florida’s Domestic Partnership Act (F.S. ยง 626.704), municipalities that choose to adopt a domestic partnership ordinance may confer the benefits of marriage upon same-sex or opposite-sex couples. Localities that have enacted domestic partnership ordinances include Broward County, Coral Gables, Fort Lauderdale, Miami, Orlando, Palm Beach County, Sarasota County, Tampa and Miami-Dade County. The range of benefits conferred under a domestic partnership varies by locality, but may include medical care visitation rights, sick leave, survivors’ death benefits, domestic insurance benefits and tax benefits. Domestic partnerships may generally be registered by any unmarried individual, regardless of sexual orientation, cohabiting with another unmarried individual in a non-transient, single family residence in the municipality granting the partnership.
Cohabitation agreements, like pre-nuptial agreements, can set forth financial and property rights for a couple. However, in contrast to domestic partnerships, cohabitation agreements do not accord the parties the benefits of marital status or the same tax benefits, property rights and other advantages granted to domestic partners.
Another available alternative is a paternity case. Under F.S. 742.091(4), a father may establish paternity of a child and seek custody of the child regardless of the marital status of the mother. While the mother can still recover child support if she is from a non-marital relationship with the father, the father is not given the same rights if he is in a non-marital relationship with the mother. The court will generally assume that the father is financially responsible for the child if he is legally married to the mother.
For same-sex couples who have been issued marriage licenses, F.S. 741.212 provides for the dissolution of a marriage solemnified outside of Florida. Non-Floridians cannot have their same-sex marriage invalidated based on F.S. 741.212 if they are seeking recognition of a legal marriage in a jurisdiction other than Florida. A party can also challenge the constitutionality of F.S. 741.212 in a child-related exception under the Statutes’ privacy protections.
Out-of-State Common Law Marriage in Florida
Common Law Marriage License Recognition Guide – the act of taking a common law partner name (for a child to take a father’s name), signing a health care power of attorney, maybe even signing a lease or purchasing property with your common law partner … all of these impact the family law practice area of divorce. It’s not uncommon that we see property issues coming up for per-marital agreements when it is uncovered that the party never actually married but lived together for a long time.
Florida has an interesting law that recognizes the legitimacy of out-of-state common law marriages as a matter of comity.
The Florida Legislature adopted Section 741.211, Florida Statutes, which states:
(1) The validity of a common law marriage created in another state or country before its repeal in that state or country shall be recognized in Florida.
(2) Any provision of Florida law pertaining to marriage other than Chapter 751 shall be applicable to a common law marriage.
So, Florida recognizes out-of-state common law marriages for parties marrying in a state or country that allows for common law marriage and relocating to Florida before getting married . A common law partner will have a marriage of sorts if they are residing in a State that recognizes common law marriages. And likewise if they traveled to another state that also recognizes common law marriages.
This provision above is important in a few ways:
Currently, there are only 11 states that recognize common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Alabama, Georgia, Texas, Utah and Rhode Island. For a simple analysis, you can deduce that if you moved to Florida from one of those other States, then the Florida divorce laws would apply to your status as a common law wife or husband.
In some ways, this was a great relief to my client when he brought a case in Florida courts as a divorce proceeding against his common law wife, who resided in the Cayman Islands. His wife was trying to argue that their proceeding should not move forward because the law was different between the Cayman Islands and Florida. She had no claim to alimony or equitable distribution.
Florida marital law covered the common law wife once he established that the parties had a common law marriage and went forward.
Legal Advice for Equitable Rights
Whether you and your partner have been together for a one-night stand or a lifetime, it is imperative that you understand your rights and obligations under Florida law. Consult with legal experts to ensure you understand how the law applies to your cohabitation. Florida statutes govern the dissolution of relationships even though no formal legally binding marriage contract was entered into. You must protect yourself against uninformed decisions that could potentially change your future . It is important to remember that each situation is different, and marital property and child custody laws are constantly evolving. It is wise to review these laws with divorce attorneys who have experience in handling cases of unmarried couples. They can help you get clarity on the rights of children born to unmarried parents, how marital property is divided, whether alimony might be awarded, etc.