It's the Law: A common law marriage cannot be created in Florida

Q: My mother has been living with a man for years. They act like husband and wife and their friends think they are married. I know they never got formally married. I have heard about something called a common law marriage. Is it possible that my mother is married by a common law marriage?

A: A common law marriage is a marriage created without a marriage license or formal ceremony. It stems from the common law of England, which became a part of the law of all States but Louisiana. Louisiana, being a French territory, inherited the Napoleonic code, or French civil law.

At common law, a formal ceremony was not required to create a marriage. All that was needed was an agreement between the parties and that the parties lived together.

Common law marriages were recognized in Florida until January 1, 1968. On that date, a statute abolished common law marriages, but recognized common law marriages that had been entered prior to that date.

In addition to mutual agreement and living together, many Florida cases required a couple to publicly claim to be husband and wife. Reputation of marriage does not appear to have been technically required at common law, but over time the public confirmation of marital status took the place of the marriage ceremony. In addition, the public was considered to have an interest in the existence of a marriage contract.

Some Florida cases held to the contrary. In those cases, the judges explained that cohabitation and reputation are merely evidentiary and not required for a valid common law marriage. Whether reputation or public proclamation was required, may have depended on whether the judge really wanted to find existence of a marriage or it’s non-existence.

Most states have abolished common law marriage. The legislatures of those states concluded that authorizing common law marriages created many problems. On one hand, possibility of common law marriage leads people to think that they have legal protections from a marriage that does not actually exist. Other people unintentionally form a common law marriage, creating financial entanglements and a possible legal disaster if they do not get divorced and later marry someone else. The only time someone knows for sure they are in a common law marriage is when a judge enters judgment that the marriage exists.

Although Florida has abolished common law marriages, those marriages that are validly entered in other states are valid in Florida. In this state, cases have held that the law of the place where a marriage is entered into determines it’s validity. That means your mother may be married if she resided in a state that recognizes common law marriage and later moved to Florida.

Of those states that still allow creation of a common law marriage, requirements may differ. In some, for example, Rhode Island requires serious intent to be married and not merely an agreement. Alabama requires consummation of the marital relationship.

Existence of a common law marriage is a question of fact. The uncertainties surrounding creation and existence of this relationship make it important that your mother consult with an experienced attorney for detailed review of her particular circumstances. Even then, the only way to know for sure is to file a court case and ask the judge to make a determination.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.