Understanding the 7-Year Common Law Marriage in FL: Separating Truth from Myths

What is Common Law Marriage?

Common law marriage is a concept as old as the hills. The idea, to use some multi-syllable words for a moment, is that "consent to wed" can be implied from the couple’s actions rather than contracted for explicitly with a formal license and marriage ceremony.
"Common Law Marriage" refers to the historical practice of "marriage by habit and repute". Under this archaic concept, if two people co-habitate "as husband and wife" for a set number of years (such as 7 years in the case of Virginia) and otherwise act like they are married, then they will be considered lawfully married.
Florida codified "common law marriage" in the 1868 Florida Marriage Statute. The Florida Legislature kept it fairly simple and to the point requiring no formalities other than acting like a married couple and being of legal age. The statute required seven years of cohabitation before you would be presumed to be married by a common law theory.
In 1967 Florida abolished this concept and declared that any marriages would require a license and ceremony as well as meeting all other statutory prerequisites. However, all marriages purportedly entered into before January of 1968 were still recognized. The law and historical policy are not entirely clear, but based on our limited caselaw and research, all purported common law marriages in Florida prior to January 1968 are still considered to be valid.
Over the years Florida courts have been challenged with defining the "informal" marriage . The result is a very limited body of law which defines the term "marriage" in the Florida statute as: "…the legally recognized union of man and woman as husband and wife."
The Florida Statute Section that describes marriage does not mention co-habitation or the implied consent to marry through the actions of the parties. So, does that mean Florida has completely abolished the "common law marriage"?
For practical purposes, the answer is yes. In order to enter into a marriage today you must take an active role in obtaining a license and participating in the ceremony. However, there are some limited exceptions…..
As part of your divorce proceeding, you may need to address the issue of whether you are divorced from a previous spouse. If so, you will most likely be required by the Court to provide a simple "Certificate of Dissolution of Marriage": Or, sometimes you may order a copy of the divorce records from the Courthouse:
In my practice I have seen several clients testify to informal marriages. Most often I’ve encountered out-of-state clients who have lived as man and wife in states that recognize informal marriages, then moved to Florida to relocate their families. The question then arises as to whether they are still married. The general rule is that when you move to a state which does not recognize informal marriage, if you are in a marriage-like relationship at the time you move to Florida, then you will be considered to be "married" for marital property purposes.

Does FL Recognize Common Law Marriage?

Strictly speaking, the Florida legislature has outlawed new common law "marriages" since 1968. So, if you don’t have a common law marriage already, you can’t get one in Florida. While the prohibition of new common law marriages means that the hundreds of thousands of common law married couples already living in Florida today do not need to worry (i.e., grandfathered couples may remain common law married), it adds to the confusion to use the term "common law marriage" in Florida in 2019. Remember, a common law "marriage" is not a marriage here. But, merely sharing a common law "romantic" relationship or living together with a partner for seven years does not mean you are married in Florida.

The 7-Year Common Law Marriage Fallacy

In Florida, the myth that living together for seven years creates a common law marriage seems to be everywhere. People come to deposition and trial all the time and tell us that their initiation or continuation of sex with their partner was an indication of consent to the marriage. They then tell us that they lived together for seven years and therefore they must be married. They always seem unaware that in Florida, it takes much more than living together for seven years to create a common law marriage. I suspect that this 7 year myth arises from the 1995 case of Mader v. Mader, 658 So.2d 1133 (Fla. 4th DCA 1995), in which the Court upheld a jury instruction that simply being together for 7 years could give rise to a common law marriage. It did not take long after that to negate this proposition and the Courts did so in cases such as Gayton v. Gayton, 804 So.2d 455 (Fla. 5th DCA 2001) (7 year cohabitation is not enough for a common law marriage); Hartzog v. Whorton, 830 So.2d 1107 (Fla. 1st DCA 2002)(Mader, supra is not a correct statement of law); Kauffman v. Kauffman, 892 So.2d 1050 (Fla. 1st DCA 2005)(Common law marriage in Florida requires additional elements of cohabitation, agreement, and professed holding out to the public). As recently as 2011, Florida’s Second District Court of Appeals in Baker and Dhanraj v. Butters, 62 So. 3d 653, 655 (Fla. 2d DCA 2011) referenced the same cases (Hartzog and Kauffman) and stated that the agreement must also be proved by clear and convincing evidence and found that "cohabitation alone is insufficient to establish existence of a valid common law marriage." Mader v. Mader is old law and does not stand for the proposition that 7 years alone is sufficient for a common law marriage in Florida.

Recognition of Out Of State Common Law Marriages

After discussing the circumstances under which your 7-Year Florida common law marriage may be deemed valid, we must recognize that other states may deem your common law marriage even more valid by way of a statutory provision providing for recognition of former common law marriages. In other words, if you plan on moving out of the State of Florida and you have a 7 year common law Miami or Broward County marriage, before you do simply remember that your Florida common law marriage is not recognized in all states. So again, do you really have a common law marriage in Florida? Not by statute, but by case law application, which in and of itself, does not equate with a recognition of a common law marriage by the State of Florida.
Given the breakdown above, this still does not address what happens if you and your common law spouse moved to a state where common law marriages are valid. Most people seem to believe that common law marriages in Florida that have not been ceremonially recognized or are not statutory recognized (again, there’s no such statute in Florida), are therefore invalid. This is not entirely true . First, there has only been one time where a Florida appellate court has addressed the Full Faith and Credit Clause as it pertains to a common law marriage entered into in another state and whether or not that common law marriage, long after the parties have moved to Florida, should be recognized in Florida by not dissolving the marriage until 7 years have passed since the date of the marriage was created under the laws of another state.
The Florida Court stated: Common law marriage is no longer recognized in Florida, except with regard to those marriages that were established when such marriages were legal. (Footnotes omitted). Florida courts may give full faith and credit to a common law marriage that was validly created in another state. The courts in Florida are not free to nullify a common law marriage that was created in another state in order to ratify new birth statistics that were erroneously recorded in the first place. Gandy v. Gandy, 617 So.2d 442, 444 (Fla. 4th DCA 1993).
So what this means is that despite the fact that Florida law may not recognize your common law marriage (if it has not been recognized by the Governor in Florida), a common law marriage that was validly created in another state, including states and territories which still allow common law marriages, will be given full faith and credit to be enforced in Florida, but only if the out of state common law marriage meets the 7-year requirement.

Legal Effect and Rights

If you believe you are in a common law marriage in Florida, there are many legal implications. In states that recognize 7-year common law, there are often property rights attached to such relationships. Not only is there joint ownership of any property acquired by one or both spouses, there are also rights to inherit, to file for divorce, and to determine beneficiaries for insurance and retirement plans. In essence, the property acquired during the marriage is considered marital property, meaning that it could be subject to an equitable distribution upon a divorce.
There are also rights when it comes to insurance and retirement benefits. If you have designated your partner as the beneficiary of your will, life insurance policy, and/or retirement account, you should know that states with common law marriage laws requiring a court order to remove someone as a beneficiary if you enter into a civil union or divorce another person.

Common Law Marriage Alternatives in Florida

While 7-Year Common Law Marriage is no longer available in Florida, there are several alternatives for couples looking to gain the advantages that a common law marriage might provide. One option is a domestic partnership, which can provide a number of legal benefits similar to marriage. However, this kind of arrangement is typically only for same-sex couples and unmarried opposite-sext couples in limited situations. In Florida, domestic partnerships are governed by the Domestic Partnership Act which allows municipalities to create domestic partnership registries. These registries allow same-sex and unmarried opposite-sext couples to obtain a certificate of domestic partnership after providing evidence that the couple have jointly resided for at least six months.
In addition to domestic partnerships, there are civil unions, which are available to both same-sext and unmarried opposite-sext couples, but not legally recognized in Florida. However, civil unions are available in several U.S. jurisdictions, including Vermont, Illinois , Hawaii, New Jersey and Delaware. Civil unions provide many of the same rights to couples as marriage does, and while they aren’t available in Florida, they are recognized by many other equal marriage states. As a result, some Florida couples may seek a civil union in a nearby jurisdiction to gain some of the benefits associated with marriage.
Another alternative for couples seeking legal recognition in Florida are putative marriages. A putative marriage refers to a couple who has entered into what is presumed to be a valid marriage, but in which at least one of the parties has a legal impediment to entering into the marriage (such as an existing marriage in another state, which makes the second marriage void in Florida). Because putative marriages essentially validate the legal status of the relationship, they afford couples with the same property, alimony and child support rights as legally valid marriages do. Putative marriages are not recognized in Florida, but they are provided for under the law of several other states.