Common Law Spouses in Florida
Common law marriage has a long history in the United States, dating back to Medieval England. It emerged from the English ecclesiastical courts, which were empowered to bless and recognize new marital arrangements. In early America, the practice was introduced into the Colonies and was recognized as legally binding by a number of states. However, as familiarity with statutory marriage increased, common law marriage fell out of favor. The first major blow to common law marriage came in 1836 when the state of Pennsylvania passed a law requiring all marriages to be officially licensed by the state, bringing the common law paradigm to an end.
In Florida, common law marriage is still prohibited, but the legal rulings in other states have had an impact on how common law marriages are handled in Florida, particularly with regard to the Dissolution of Marriage. While the state of Florida excludes common law marriage entirely , it still recognizes common law marriages performed in other states. According to Florida statutes, a common law marriage validly created in another state prior to January 2, 1968 will be recognized in Florida as valid. The statute highlights pre-1968 common law marriage but is ambiguous on whether post-1968 common law marriages would be recognized in Florida.
Because the law is unclear, relevant case law should be relied upon. In McBride v. McBride, (297 So.2d 305 (Fla. 4th DCA 1974) the court decided that common law marriages were invalid after January 2, 1968. In 1997, the Florida Supreme Court addressed a case called In re Estate of Couch, (618 So.2d 1333 (Fla. 1993). In this case, the court stated, "we expressly disapprove of the language used to refer to common law marriages after the effective date of F.S. 741.211." It seems likely, therefore, that courts will follow the precedent set in McBride when determining the validity of common law marriages after January 2, 1968.
Requirements for Common Law Marriage
The legal criteria for a common law marriage closely resemble the requirements for a ceremonial marriage (or traditional marriage), except that it is accomplished through a course of conduct between the parties rather than a formalities. Under the general law of common law marriage, for a common law marriage to exist, these elements must have taken place:
- (1) Both parties must have the intention of a permanent marital relationship and an agreement to marry each other.
- (2) The parties must have capacity to enter into a marriage, i.e., they must be of legal age and mentally competent to enter into a voluntary marital relationship.
- (3) The parties must cohabit (in a continuous state of habelite marriage) after entering into the marital relationship.
- (4) The parties must hold themselves out as husband and wife and be held out as such by their family and friends.
- (5) The relationship must generally satisfy the statutory requisites of a ceremonial marriage (if such sum were entered into).
In addition to these generally required elements, other state laws have sometimes imposed the following requirements for the existence of a common law marriage:
- (1) The parties must have lived together for a particular statutorily defined length of time.
- (2) The parties must have declared to be spouses.
- (3) There must have been a mutually acquired property.
The elements outlined above are generally consistent with those that have been recognized in Florida’s Second District Court of Appeal. These elements will be explored in greater detail in the later sections of this blog.
Burden of Proof: Key Pieces of Evidence
The types of evidence that may be used to prove common law marriage include but are not limited to the following types of evidence:
- (1) A joint financial account, indicating shared savings and/or investments, joint bills, etc.
- (2) A deed or license in both names, such as to a vehicle, office lease, home, etc.
- (3) The evidence of understanding and/or intent of a common law marriage between the parties including:
(a) Sworn affidavit
(b) Domestic partnership agreement or other legal document indicating the parties’ understanding and intent to create a common-law style marital relationship
(c) Evidence of cohabitation that is neither transient nor sporadic
(d) Letter from the Internal Revenue Service recognizing the parties’ marriage
- (4) An obituary that refers to the parties as "married" or as husband and wife from a period prior to the couple’s separation
- (5) The website of the Social Security Administration confirming that the agency considers the parties to have entered into a common law marriage
- (6) Children born to the couple together (NOTE: Unfortunately, this may not be conclusive evidence, because since Florida’s presumptive blood tests became mandatory, often it may be difficult to prove who the child’s biological father is.
- (7) Evidence of contractual obligations between the parties
- (8) Evidence of the acknowledgment of the marriage in public records
- (9) The use by the parties of the same surname, or initial name, both orally and in writing.
- (10) Evidence of both parties’ reputation of being married is generally accepted, not hearsay, and should include testimony of the parties’ manner of living, standing in community as a married couple, and actions in the community recognizing the relationship as a married couple.
Court Proceedings and Challenges
A party seeking to prove a common law marriage under Florida law must undertake a legal proceeding (i.e., file a petition with the Court) to do so. Once the action is instituted the parties are in the same position they would be if they were seeking to dissolve a legal marriage. Therefore, although the legislature has not provided any specific guidance as to how to prove common law marriage, the courts have basically understood the litigation process. This means that the traditional rules of evidence will apply, along with any other procedural rules, and the burden of proof will be on the party seeking to prove the common law marriage took place.
The first hurdle that a petitioner often encounters is answering the question of what evidence is admissible. In this regard a party can rely on two types of proof. The first is documentary evidence (such as tax returns, bank statements, insurance documents, etc.), and the second is testimonial evidence (the testimony of family and friends).
Common examples of documentary evidence might include joint or individual bank statements, joint tax returns, and mortgage documents . Although there certainly may be other examples, these should serve as a sufficient overview of what a litigant might present. Of course, the specific admissible documentary evidence will depend upon the facts and circumstances of a given case.
When it comes to testimonial evidence, courts in Florida have held that the testimony of family and friends is equally important. Indeed, courts understand that it may be presumptive to simply rely on either type of evidence in isolation. Thus, under ideal circumstances, where there is both documentary and testimonial evidence submitted, a court will have the best opportunity to ascertain whether the party has proved their case. In the real world, however, this is not always the case, and often times a judge is left with just one type of evidence or the other. So long as the party seeking to prove their common law marriage has appropriate evidence, which may or may not be corroborated by the other type of evidence, the court will generally be permitted to find that the party has met their burden.
Common Law Marriage: Pros and Cons
Once a common law marriage is deemed valid, there are certain benefits. For example, for inheritance purposes, common law spouses have the same rights as those who are formally married in Florida. In addition, even a spouse who did not work may be eligible for alimony. Additionally, health insurance benefits may be available to a common law spouse through the other partner’s employer. Finally, a common law marriage provides Florida’s protections against unintentional disinheritance and intestate succession laws. There are also disadvantages to a common law marriage. Unless there is a document stating how property will be divided in the event of a divorce, property accumulated during the marriage may need to be divided in a manner similar to a formal divorce. For income tax purposes, because the couple may be deemed legally married, the spouses will be unable to file tax returns as single individuals.
Skilled Legal Support
The legal landscape surrounding common law marriage in Florida can be difficult to navigate. To maximize your chances of successfully establishing a common law marriage, it’s crucial to consult with a qualified legal professional . A knowledgeable attorney can provide guidance on navigating the complex world of common law marriage and can help you understand the nuances of your specific case. They can also aid you with the process of gathering documentation and evidence to satisfy the many requirements for establishing a common law marriage and will use their expertise to determine the best course of action for you.