Common Law Marriage in Florida

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“There is currently no common law marriage in Florida.”

Well . . .not exactly, but sort of. It’s tricky and works like this.

Florida Statute 741.211 abolished all common law marriages in the State of Florida which were entered into after January 1, 1968.  Common law marriages entered into prior to that date are still considered valid.

If you have been living together with a significant other for a period of years, you may wonder if you have a common law marriage in Florida.  Many people wrongly assume that merely by living together for a fixed term, that a Florida common law marriage is created.  It is not.

However, in many jurisdictions outside of Florida couples who live together for a number of years and hold themselves out as “husband and wife” publicly (such as filing joint tax returns, using the same last name, and referring to each other as married) may be considered to be married according to common law within that jurisdiction. This tradition goes back centuries into English common law before the founding of the United States of America.

Here’s where this gets tricky. Florida will recognize a valid foreign marriage, even a common law marriage, recognized by a state or jurisdiction outside Florida that recognizes common law marriage, and the parties in fact have a valid common law marriage where that marriage occurred, and the laws of marriage from that jurisdiction do not offend Florida, or the United States public policy.

This means that if you were validly married under common law in a place that recognizes common law marriage, under circumstances that would not offend public policy, and then the couple moves to Florida, the state of Florida will recognize the marriage.

Technically, Florida recognizes the marriage because it’s a valid marriage where it occurred, which does not offend public policy.  The fact that it was a “common law” marriage where it occurred is irrelevant in the eyes of Florida at this stage of the analysis. All that matters is that it was valid and does not offend.

So if you were common law married in one of the states that has legislated acceptance of common law marriage, you retain your married status upon moving to the state of Florida.

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