What is common law marriage?
Common law marriage is a marriage that can exist when a couple has lived together for a period of time and presents themselves as married to their local community. But the key difference is that their union has never been formally celebrated in a religious service or recorded as such by a state or religious registry of any sort.
It is known by a few other names such as sui luris marriage, informal marriage, marriage in fact or marriage by habit and repute.
An interesting fact somewhat unique to Florida is that in 1868, the state passed a law making it illegal for two people to live together. It was considered “lewd and lascivious” to do so before marriage. In fact, it was considered a felony punishable by up to 60 days in jail and a $500 fine. This remained the case until 2016 when the law was changed.
People often use common law marriage as a term to define a couple that is simply cohabitating together, but the standard for recognizing a formal common law marriage carries a higher standard in most cases and jurisdictions.
In addition to no formal ceremony or formal certificate of recognition of a marriage, to be able to claim common law marriage status, many jurisdictions require that the couple must be cohabitating for a minimal specified amount of time and that they were living together when the common law marriage was formed.
In some instances, the cohabitation period can be as little as three years or as long as seven years. It varies by jurisdiction. Florida has no such requirement.
Today, only a handful of states still allow common law marriages to take place. Florida used to allow the practice, but no longer does.
But that’s not the end of the story. There are a number of important things to know if you and your partner haven’t officially tied the knot.
Let’s get started.
What states allow common law marriage?
Seven states currently allow common law marriages to take place.
- Rhode Island
Common law marriage is also recognized in Washington, D.C.
Utah will validate a common law marriage only through a court order. New Hampshire acknowledges common law marriages for purposes of probate only.
Some states have grandfathered in common law marriages if you entered into one before a certain date as dictated by state law. This means you’re considered to have a valid marriage if you were in a common law marriage prior to the change in the law.
Two key things to know about common law marriage in Florida
State law governs how common law marriages are characterized in the United States. In Florida, there are a couple of things worth pointing out.
First, common law marriages apply to heterosexual couples only. Common law marriages do not apply to same sex marriages. Same sex partners living together are classified as cohabitating, but not in a common law marriage.
Second, in some states, there is a length of time requirement to be recognized as being in a valid common law marriage. Not so in Florida. There is no set length of time. This is something the state will review on a case-by-case basis, as needed.
A few pros and cons of common law marriage
Here are a few things good and not-so-good about common law marriage.
In the past, common law marriages have tended to favor women, who were often economically dependent on their partners. That is still often the case today.
Having children out of wedlock was much less acceptable than in more recent years. Today, common law marriages are a less formal, but more acceptable way to legitimize parenting.
When common law marriage is legally recognized, it provides benefits that unmarried cohabitating couples do not get. This can include the right to make medical decisions for a disabled spouse, the right to a formal divorce and the ability to inherit a spouse’s property.
Common law marriage vs. cohabitation can also have an impact on Social Security benefits and survivor benefits.
Cohabitation doesn’t entitle you to any particular split or partition of property or assets. If you cannot discern who gets what and you have to go before a judge, the whole ordeal could get ugly. In lieu of a recognized common law marriage, you would need to develop a cohabitation agreement to protect your rights and interests. The court will consider this a legitimate legal document.
Florida recognizes common law marriages that were entered into from other countries.
Because there is no exact formula for determining common law marriage, it can be confusing when courts need to get involved to settle related issues. Due to this grey area, you may find yourself having to work extra hard to define whether or not you’re in a common law marriage.
More and more states are doing away with common law marriages due to the vagaries associated with the practice. The law likes clarity and common law marriage does not always provide that.
When common law marriage can’t be clearly established, it can be difficult for one spouse to collect benefits or other incentives. If you can’t officially show you’re married, you may wind up with nothing.
It is much easier now to get married than in distant times, so the need for common law marriage has dwindled in importance. A statutory marriage removes many of the questions that may otherwise surround a partnership.
Does Florida have common law marriages?
Yes and no.
That’s because, prior to January 1, 1968, common-law marriages were valid in Florida.
However, according to Section 741.211 of The 2016 Florida Statutes, “no common-law marriage entered into after January 1, 1968 shall be valid.”
For current cohabitating couples in Florida, you have no way for a common law marriage to be legally recognized. If you want to make sure your marriage is legally binding, a Florida marriage license will be required.
Florida is one of the few states where previously entered into common law marriages are grandfathered in.
The other exception is if a common law marriage was entered into in another state where common law marriages are valid, Florida will recognize those as legal marriages as well.
Why does Florida recognize common law marriages that were established in other states?
The Full Faith and Credit clause of the U.S. Constitution requires all states to accept a common law marriage established in a state that recognizes a common law marriage.
The clause ensures that a couple with a common-law marriage in a state where it is legally recognized may move to another state and maintain the couple’s common law marriage status even if the new state does not legally recognize common law marriage.
This also means that Florida couples who entered into a common law marriage before 1968 will have their marriage recognized by other states if they move.
Related: Florida Divorce Laws: A Beginner’s Guide
How does common law marriage impact health insurance eligibility?
If an employer offers spousal coverage for health insurance, then this would also include the contractual definition of spouse in a common law marriage. That means the employer would have to allow a spouse from a common law marriage to enroll the same as the spouse from a traditional marriage.
It’s important to remember that once a common law marriage is established, it must be recognized even in states that do not recognize a common law marriage.
Also, children have the presumption of legitimacy, so they are considered an employee’s dependents for purposes of health insurance coverage.
In some cases, a signed affidavit from an employee will be needed to recognize the common law marriage before enrolling a common law spouse on the health plan.
Employers may also require proof by requesting evidence such as joint tax returns, checking accounts, mortgage or lease, or other requirements specified under the state laws.
Entering into a common law marriage contract
If you don’t live in a state that recognizes common law marriage, such as Florida, or if you’re a same-sex couple, attorneys recommend that you consider protecting your union and reap the benefits of marriage without the formality by entering into a contractual relationship with your partner.
When you enter into this contractual relationship you can agree to the specific rights and obligations that would otherwise be conferred to each of you as a married couple.
By delineating exactly what the terms of your relationship are, you can also protect yourself from some nasty surprises later.
For example, if you state that you are in a contractual relationship only, but not trying to establish a common law marriage, your so-called “spouse” who you have lived with for a number of years can’t stake a claim to certain assets, such as your pension, which they might otherwise have rights to as part of your common law marriage.
Is there such a thing as a common law divorce?
No. There is so such thing as a common law divorce. If you are in a legally recognized common law marriage, you will need to go through a traditional divorce process if you want to leave your partner.
Related: A Guide to Getting a Divorce in Florida
The only other way out of a common law marriage is if one partner or the other passes away.