SSR 72-26: SECTION 216(h)(1) (42 U.S.C. 416(h)(1)). -- RELATIONSHIP -- VALIDITY OF COMMON LAW MARRIAGE WHERE PARTIES LIVE TOGETHER AFTER REMOVAL OF IMPEDIMENT -- FLORIDA
20 CFR 404.1101(c)
SSR 72-26
- When a worker entered int o a bigamous ceremonial marriage in 1966 in Missouri and later moved to Florida, a State that recognized common law marriages at that time but which abolished common law marriages on January 1, 1968, held, removal of the impediment to the bigamous marriage by divorce in April 1968 did not result in a valid marriage, common law or otherwise, even though the parties lived together in Florida as husband and wife both before and after common law marriages were abolished in Florida.
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:
- 741.211 Common law marriages void
- No common law marriage entered into after January 1, 1968, shall be valid except that 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. Laws 1967, c.67-571, § 1 eff. Aug. 3, 1967.
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 doctrine that cohabitation continued after the removal of the impediment to an invalid marriage validates the marriage is not based on a theory of ratification of the earlier marriage, but on the theory that a new common law marriage is contracted after the removal of the impediment to the marriage of the parties, and the rule is therefore without application where informal or common law marriages are not recognized. 55 C.J.S., Marriage § 36, p. 881. See, also 52 Am. Jur. 2d Marriage, § 69, p. 921.
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.