How can a couple that has never had a marriage ceremony or a marriage certificate be married? This legal theory is known as common law marriage and it treats a man and woman who act like a husband and wife as a husband and wife upon splitting up.
Florida recognized common law marriages for many years until 1968 when the state ended it with Florida statute 741.211.
This does not mean that no common law marriages exist in Florida. Florida will, in fact, recognize common law marriages in two main capacities: Couples having entered a common law marriage before 1968 and couples seen as married under common law from a state that permits common law marriage. As stated succinctly in the opinion of Johnson v. Lincoln Square Properties, Inc., "Florida has always determined the validity of marriage in accordance with the laws of the place where the marriage occurred." Such a following also requires Florida to look at how those states treat property acquired during the marriage.
The states which recognize common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (select cases), South Carolina, Rhode Island, Texas, Utah, and the District of Columbia.
Courts in these states will look at the following elements when deciding to recognize the couple as married under common law:
- (1)The couple has cohabited in a common-law state
- (2) with the intention to be married
- (3) for a period of time (which will be viewed subjectively on a case by case basis)
- (4) and has held themselves out as married (joint tax returns, shared surnames, etc)
If all these elements are not present, the couple cannot be deemed to be married under common law. As one might notice, there is much subjectivity with each element, and it is important for individuals to contact an experienced family law attorney to assess their potential situation and assist in the process.
If a common law marriage is found to be valid, the couple will be treated as no different than a traditionally married couple in these states. They will need to go through all the same formal divorce proceedings to dissolve their marriage.
Here at the Law Firm of Sandy T. Fox, our legal team is committed to clients in the Miami-Dade and Fort Lauderdale areas to help resolve family law matters. We provide you with knowledgeable advice and calculated insight into your domestic law queries. Whether your marriage began in Florida or is ending in Florida, whether you are approaching marriage and need to ensure your assets are protected or you are considering ending a marriage and need to limit your liabilities, whether you need a modification of child or spousal support, whether you have a prenuptial agreement or not, our firm is here to help. If you are in the South Florida area and need to speak with someone, please contact our office for your confidential consultation by calling (800) 596-0579 or contact us online.
Prenuptial Agreements: Important for Every Florida Marriage Florida Family Law Attorney June 6, 2013
Important Legislation for Elderly Married Couples in Florida Florida Family Law Attorney April 22, 2013
The Uncertain Future of Florida Alimony Florida Family Law Attorney February 26, 2013