For decades Florida was a large, empty state where not everyone lived near a courthouse and even if they did, they couldn’t get there conveniently until cars were commonplace. Florida residence would get engaged (or get pregnant), have a little wedding ceremony at a church and begin living together as man and wife. So, many Florida residents would not go to the court house or county clerk to formally register their marriage. In Florida, these marriages were legally termed common law marriage. Common law marriages are relationships that become legal marriages after a couple live as husband and wife for a certain amount of time. Common law marriages may no longer be the standard law in Florida as they once were…but Common law marriages in Florida not completely a thing of the past.
Common Law Marriage In Florida Can No Longer Be Established
In 2016, the Florida state legislature passed this statute: “Common-law marriages void.—No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” Florida Stat. Sec. 741.211
This means that as of 2016 common law marriages that were established before the year 1968 may be recognized by the state of Florida. Clearly these common law marriages are rare and rarer with every passing day.
So, you cannot ask a Florida court to certify your relationship as a common law marriage unless your relationship would have been considered a common law marriage in 1968.
Defective Florida Marriage Licenses
So, if common law marriage is no longer allowed in Florida, the only way to get married in Florida is get a marriage certificate from a Florida county clerk.
To get a Florida marriage license the following is required:
- That both parties be 18 (or 17 with parents’ permission but only if the older person is no more than 2 years older)
- The parties must have submitted their social security numbers to the clerk of court (unless there is no social security number)
- The parties have attended a “premarital course” (unless you opt out of the premarital course)
These are very technical rules. If you don’t meet these arcane requirements and are still issued a marriage certificate can you ask that your marriage be declared invalid? Obviously there would be huge advantages to one party in a divorce where that happened.
A technical error in issuing a marriage certificate does not effect the validity of a Florida marriage. The Florida statute invalidating Florida common law marriage reads “nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” Florida Stat. Sec. 741.211.
If your Florida marriage license was issued in error but your heart was in the right place, common law marriage becomes valid again in Florida in that case.
Common Law Marriages Which Are Still Legal In Florida
A common law marriage can be legally valid in Florida if the following requirements are met.
- The parties moved to Florida
- The parties previously lived in a state that legally acknowledges common law marriages
- The common law marriage was legally established per that state’s law,
If all of these requirements are met, Florida will also recognize that out-of-state common law marriage.
The States that allow common law marriages are as follows: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Washington, D.C.
What Do Unmarried Couples Do In Florida When They Split Up?
An unmarried Florida resident in a long term relationship cannot get divorced if they are not married in Florida.
If you are not married in the eyes of Florida law, you cannot ask for alimony in Florida. While California and some other states have an alimony for unmarried couples called “palimony,” Florida does not.
Unmarried couples with children who have lived in Florida for the last 6 months have the exact same rights to that child as a married couple. The unmarried couple will enter into a parenting plan that will govern their relationship with the child in the same way as a divorcing couple would come to an agreement regarding the child. Parenting plans between unmarried couples usually include orders about child support and other financial issues while divorcing couples handle financial issues in their marital settlement agreement.
Unmarried couples in Florida have no presumption of shared property the way married couples do. An unmarried couple in Florida is treated identically to two friends or business partners, or even strangers who had property either individually or together whether in name or possession. So, without the ability to divorce, an unmarried person walks away from their relationship with whatever is in his or her name or possession.
If there is property in both unmarried parties’ names or possession the property must be divided in chancery court not divorce court. Dividing unmarried people’s property is called a “partition action.”
Partition actions don’t care if the parties were married or unmarried but being a couple definitely helps prove joint possession of an object and the parties intentions as to the object. As the old saying goes, “possession is 9/10 the law.”
Russell Knight is a Naples Florida Divorce Lawyer.