20 CFR 404.1101(c)
R married J in 1961 in Mississippi. In 1966 he entered into a bigamous ceremonial marriage with B in Missouri. R and B moved to Florida where in 1968 and 1969 they became the parents of two children. On April 9, 1968, a final decree of divorce between J and R was issued by a Mississippi court. R died domiciled in Florida.
Since R and B resided in Florida before and after the date of the divorce decree, their relationship under Florida law prior to January 2, 1968, would have met the common law marriage requirement except for the impediment of R's existing prior marriage.
The question then arises as to the marital status between R and B under Florida law subsequent to the removal of the impediment to their marriage.
R's 1966 attempted ceremonial marriage to B was void, rather than voidable. An attempted marriage by a person having a living spouse of an undissolved marriage is, under Florida law, illegal bigamous, and void from its inception. Jones v. Jones, 119 Fla. 824, 161 So.836, 104 ALR 1, 15 ALR 3d 773n (1935); Reese v. Reese, 192 So. 2d 1 (Fla. 1966); Evans v. Evans, 212 So. 2d 107, 108 (Fla. App. 1968); 52 Am. Jur. 2d Marriage. § 67, p. 919.
After January 1, 1968, common law marriages entered into the State of Florida are void. Florida Statutes Annotated, provide in pertinent part:
The elements required for a common law marriage entered into in Florida prior to January 2, 1968, were: (1) legal capacity to contract marriage, (2) mutual agreement of the parties to presently become husband and wife and (3) consummation of the agreement by cohabitation. Dandy v. Dandy, 234 So. 2d 728 (Fla. App. 1970)l; Williams v. Dade County, 237 So. 2d 776 (Fla. App. 1970). Prior to the 1968 Florida statute abolishing common law marriages, such a marriage (where otherwise valid) could arise on the basis of continued cohabitation after the removal of the impediment to the prior ceremonial marriage. Jones v. Jones, supra, 161 So. at p. 839.
Under the general rule, which is followed by the courts of Florida:
The State of Florida has no statutory provision under which a defective marriage may be validated upon the removal of an impediment to such marriage. See Am. Jur. 2d Marriage, § 69, fn. 14, and § 70.
R's ceremonial marriage to B in 1966 was void, since his prior marriage to J in 1961 was not dissolved until April 9, 1968, when the divorce between J and R became effective. R and B, therefore, could not have entered into a common law marriage in Florida prior to April 9, 1968. Since common law marriages were abolished in Florida effective January 1, 1968, R and B could not have entered into a valid common law marriage in Florida at any time that R was free to marry. Florida law contains no provision to validate a void ceremonial marriage upon the removal of an impediment to the void marriage.
Accordingly, it is held that the marital relationship of R and B on or after April 9, 1968 (after removal of the impediment to their ceremonial marriage), did not constitute a valid marriage under Florida law.
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