Marriage is a social institution considered by most to be the foundation of society and the family. Marriage is both a religious and secular institution, but we concern ourselves in this article with only the secular. Marriage as a secular institution is considered by the law to be a vital public interest, and thus the legislature regulates the creation, duration, and termination of marriage, subject to constitutional limitations. One of the first things your attorney should do is determine whether you are legally married under the law. The most common secular marriage is one in which the parties are granted a license from the state in which they are legal residents, and a marriage certificate is issued when all of the legal requirements of that state (or foreign nation) have been met. But sometimes people perform rituals or sign documents that purport to certify their status as legally married, but in fact they do not conform to law or social norms. We must examine the facts and apply them to the laws to determine if a valid, legal marriage has occurred.

Common Law Marriage

Common law marriages are agreements between a man and a woman that they are married without compliance with formal marriage licensing requirements. To be a valid common law marriage, both parties must be legally able to enter into contracts (i.e. mentally competent, majority age, etc.), and both must express their present intention, in the presence of each other, to be husband and wife.

Florida does not recognize the validity of common law marriages entered into in this state after January 1, 1968. Florida Statutes § 741.211 states that any common law marriage entered into in Florida after January 1, 1968, is void and unenforceable. Florida will, however, respect a common law marriage when it was entered into in a state which recognizes common law marriages. This is consistent with the general principle that the validity of a marriage is determined by the law of the place where the marriage was solemnized.

This principle of law was very important to Mr. and Mrs. Anderson in their 1990 divorce filed in Bay County, Florida. Mr. Anderson successfully defended against Mrs. Anderson’s request for alimony by proving to the court that their marriage was not valid because Mrs. Anderson’s divorce decree from her prior marriage had not yet been signed when their marriage ceremony took place in Georgia. Neither party knew it at the time, as both believed her divorce to have been finalized days before the marriage. On appeal, it was determined that Georgia law provides that "where parties enter into a ceremonial marriage which is not valid because of the incapacity of one of them, unknown to the other, but the impediment is later removed, their continued cohabitation thereafter as husband and wife is sufficient to create the presumption of a valid common law marriage”. The appellate court held that the parties had a valid common law marriage under Georgia law, and Mrs. Anderson was therefore entitled to alimony. Anderson v. Anderson, 577 So. 2d 658 (Fla. 1^st DCA 1991).

The existence of a common law marriage was also the deciding factor in Compagnoni v. Compagnoni, 591 So. 2d 1080 (Fla. 3d DCA 1991). The parties were married in 1975 in Pennsylvania and then divorced in 1980. They reconciled 6 months after the divorce, resumed living together without remarrying, and had two more children. The "husband" was transferred to Florida in 1987 and his "wife" and 3 children joined him later in the year. The parties were formally remarried at the end of 1987. The Wife filed for divorce in 1990 and asked for alimony and equitable distribution based upon the 10 year relationship from the reconciliation in 1980 until the petition was filed in 1990. The trial court denied the Wife alimony on the basis that this was only a 3 year marriage, and distributed the property acquired only from the date of the formal marriage in 1987. The appellate court noted that Pennsylvania law recognizes that when parties lived together after their divorce and hold themselves out as husband and wife, they have a common law marriage. The appellate court directed the trial court to redetermine, based upon the party's 10 year marriage (common law and formal), what assets are marital and to reconsider the Wife's request for alimony in the context of the 10 year marriage.

Prohibited Marriages

Persons wishing to enter into a marriage may be prohibited from doing so because of their legal or physical status. For example, Florida Statutes § 741.04 provides that a marriage license may not be issued unless one applicant is a male and the other is a female. Same sex marriages are not licensed or legally performed in Florida. This area of the law is changing on a daily basis in various states and countries around the world. Persons that are mentally incapacitated, and therefore incapable of entering into contracts, are likewise prohibited from marrying. Children who have not yet reached the age of majority cannot legally marry without parental consent, with some exceptions.

What if the marriage is between brother, sister, uncle, aunt, nephew, niece or other close blood relative? Florida Statutes § 826.04 makes such marriages a third degree felony. But is the marriage valid? The case of Johnson v. Landefeld, 189 So. 666 (1939) implies that the marriage may not be void but merely voidable. Interestingly, first cousins are not prohibited from marrying one another in Florida.

Bigamous Marriages

What if it turns out that one of the parties never got around to divorcing a prior spouse before getting remarried? Florida Statutes § 826.01 makes bigamy a third degree felony, but there is a legal defense to bigamy if there was reasonable belief of eligibility to remarry (like with the Andersons above). But is the bigamous marriage valid? NO. Bigamous marriages are always void from the beginning and cannot support an award of alimony. Because there was no valid marriage, there is no divorce in the customary fashion.