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T's The Law: Marriage May Not Need To Meet All Legal Requirements To Be Valid

Question: I understand Florida has a lot of technical requirements that must be met to have a legally recognized marriage. A friend of mine told me that he got married in Florida without a license and has been married for over 20 years. Is that legal?

Answer: Chapter 741 of Florida Statutes sets out the legal and technical requirements for marriage in Florida. That chapter also addresses which out-of-State marriages will be recognized in Florida.

Under Chapter 741, a couple wishing to marry must obtain a license, and personally appear at a solemnization ceremony. The person solemnizing the marriage must send the license and a certificate of marriage to the Clerk of Courts after the ceremony is completed. Upon receipt of the license and certificate, the Clerk of Courts enters on the original record of license the name of the person solemnizing the marriage and the date of marriage.

The procedure sounds very simple and interpretation should be easy. However, there are a number of other requirements that must be met.

Florida will not issue a marriage license to a same-sex couple. If both applicants are not eighteen (18) years of age or older, the marriage license will not be issued unless if the person is at least 16 years old and files properly acknowledged written consent of his or her parents. The County Court Judge may, in the Judge’s discretion, issue a marriage license to applicants under 18 years if they are the parents of a child, or if they produce verification from a licensed Physician that the future wife is pregnant. Parental consent is not needed for the marriage of a couple who are already or are expectant parents.

After the license is issued, the marriage must be solemnized within 60 days. All regularly ordained Ministers or Elders in communion with some church and all Judicial Officers, retired Judicial Officers, Clerks of the Circuit Courts and Notaries Public may solemnize a marriage. Marriage solemnized among the Quakers or Friends in the manner used in their societies is good and valid.

The parties must appear in person to be married. Florida law does not authorize a proxy marriage.

As of January 1, 1968 Florida abolished common law marriage. However, Florida does recognize a common law marriage entered in a State where common law marriage is allowed. By statute, Florida will not recognize a same-sex marriage, even if it originates in a State where it is allowed. Florida also prohibits marriage between lineal descendants (such as father and daughter) and with one’s Uncle, Aunt, Niece or Nephew.

The issue of validity usually involves a claim by one party to some benefit resulting from a marital relationship. Most often, it is alimony, property or child support connected with divorce, but can be a claim in probate, for retirement benefits or governmental assistance.

A marriage is absolutely void if one of the parties is already married to someone else at the time of the latter marriage. Marriage entered by fraud, duress, undue influence or incestuously, or fraudable. That means they are valid unless properly challenged. In those marriages the parties are entitled to all benefits or marriage until one challenges the validity and a Court agrees.

In late October, Florida’s First District Court of Appeal was asked to declare a marriage void when a couple had solemnized marriage, but did not obtain a license. The wife sued for divorce and the husband argued there was no marriage so that there would be no marital assets to split.

The trial judge ruled that no valid marriage existed. The appellate court reversed, relying primarily on a Florida Statute which 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.”

The case was sent back to the trial court for further hearing and determination of whether the wife entered the marriage in good faith believing it to be valid. If she did, the court indicated the marriage would be valid.

Cases questioning validity of a marriage can be quite complex. Good faith and actions of the parties will be at issue. Thorough examination of all circumstances and facts is critical. The particular facts and circumstances of a given case will control the outcome. Anyone involved in a dispute over validity of a marriage should retain an experienced attorney at the earliest possible time.

By: William G. Morris, Esquire

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