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Does Florida recognize common law marriage?

If you and your partner are currently living together in Florida without benefit of marriage, are the two of you nevertheless legally married even though you never went through a marriage ceremony? The answer to that question depends on the state in which you lived at the time you and your partner started living together.

As Unmarried.org explains, the concept of common law marriage, i.e., "do it yourself" marriages established by virtue of a couple deciding to live together, dates back to England's common law. Consequently, it embedded itself into American "common law," too. However, in the United States, you and your partner can only establish a common law marriage in the states that provide for it. Florida is not one of today's 16 such states.

On the other hand, if you and your partner lived in a common law marriage state at the time you began living together, Florida and all other states must recognize the legitimacy and legality of your marriage by virtue of the Constitution's full faith and credit clause.

Common law marriage requirements

Be aware that simply living together in a common law marriage state does not, in and of itself, mean that the two of you have established a valid common law marriage. You must do something additional, such as one or more of the following:

  • Tell your families, friends, coworkers, etc. that you are married
  • Call each other "my wife" and "my husband"
  • File joint income tax returns
  • Use the same last name

If you are the woman in the relationship, that last bullet item is a particularly interesting one. You need not legally change your last name to that of your husband in order to establish your common law marriage. You can continue to use your own legal name on your Social Security card, your driver's license, your credit cards, and anything else you wish. But at some point you would do well to use your husband's last name, such as in social situations. Be aware, however, that this practice may well set you up for a continuing identity crisis. Your answer to the simple question, "What is your name?" will depend on who asks the question and for what purpose.

As stated, if you and your partner established a valid common law marriage in a state that allows them and then moved to Florida, you are legally married here, too. Consequently, if your relationship ends, you will need to obtain a divorce in order to be legally free to marry someone else.

The foregoing represents educational information, not legal advice.

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Schipani and Norman, P.A.
1605 Main Street, Suite 1110
Sarasota, FL 34236

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