Tuesday, October 20, 2009

Unlicensed Marriage Not Invalid In Florida According To First District

In Hall v. Maal (08-4776), the First District held that an unlicensed marriage is not invalid in the state of Florida.
The procedures for contracting a valid marriage in Florida are regulated by Chapter 741, Florida Statutes....The Legislature does not, however, expressly state anywhere in Chapter 741 that marriages conducted without a license are invalid or prohibited. In contrast, same-sex and incestuous marriages are prohibited. §§ 741.21, 741.212, Fla. Stat. (2002).
As noted above, common-law marriages are void. § 741.211, Fla. Stat. (2002). A common-law marriage is defined as “[a] marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple.” Lowe v. Broward County, 766 So. 2d 1199, 1210-1211 (Fla. 4th DCA 2000) (citing Black’s Law Dictionary, 986 (7th ed. 1999)). Under the facts of this case, the parties’ relationship was not a common-law marriage; rather, in light of the wedding ceremony, it was an unlicensed marriage.
It is clear that the Legislature has prohibited and invalidated same-sex and incestuous marriages, but it has not invalidated unlicensed marriages. The absence of an express invalidation of unlicensed marriages may be considered an expression of legislative intent under the canon of statutory construction known as expressio unius est exclusio alterius.
We note that the Legislature is quite capable of writing a strict statute that allows no exception for unlicensed marriages. The Legislature has done just that regarding unlicensed drivers, unlicensed lawyers, unlicensed doctors, and various other activities too numerous to mention.
We decline to hold that a solemnized marriage without a marriage license is per se invalid. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
Judge Roberts wrote a dissent. 
Since 1967, when the Florida Legislature abolished common law marriage, there has been only one method of producing a legally cognizable marriage in Florida. See generally §§ 741.01-.212, Fla. Stat. (2002). Persons desiring to be married are required to apply for a marriage license which can be issued by a county court judge or the clerk of the circuit court. § 741.01, Fla. Stat. (2002).


Unknown said...

What if this had happened before 1968, when common-law marriages (with or without a religious ceremony) were still in effect?

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