Florida abolished common law marriage more than half a century ago. That answers the question most people arrive with and leaves the harder one untouched — what you actually have after twelve or twenty years together, whose house it is, and what happens to the children. This page covers both, and the exception that catches people out: a common law marriage formed somewhere that still allows them.
Does Florida recognize common law marriage?
No. Section 741.211, Florida Statutes, is one sentence long and has read the same way since 1967: “No common-law marriage entered into after January 1, 1968, shall be valid.”
It makes no difference how long you have lived together, whether you share a surname or have children. A Florida marriage takes a licence under chapter 741 and a ceremony; time does not substitute for either.
The statute carries one narrow saving clause: it does not affect a marriage which, “though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” That protects a licensed ceremony with a technical flaw, not a couple who never obtained a licence.
Is Florida a common law state?
People mean three different things by it. If you mean the legal tradition, yes: section 2.01, Florida Statutes, declares the common and statute laws of England in force here down to 4 July 1776, so far as they remain consistent with later law.
If you mean marital property, yes again, and this one matters. Florida is a common law property state, not a community property state — section 61.075(8) says the statute does not “establish community property in this state.” Nothing becomes half-and-half automatically; a court classifies assets as marital or non-marital and divides the marital ones, as our page on dividing property in a Florida divorce explains.
If you mean common law marriage, no — and not since 1968.
What about couples who were common law married in Florida before 1968?
The statute voids marriages entered into after 1 January 1968 and is not retroactive. One formed in Florida on or before that date is still valid, endable only by death or dissolution.
This is now a probate and benefits question rather than a divorce one — anyone who could claim such a marriage was an adult in 1967. It surfaces in estate administration and survivor claims, and proving it six decades later is a documentary exercise.
We were common law married in another state. Will Florida recognize it?
Usually yes — and this is where the subject does real work.
The validity of a marriage is judged by the law of the place where it was contracted, and Florida applies that rule to common law marriages too. As the First District put it, “Florida will respect a common law marriage when entered into in a state which recognizes common law marriages” — Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. 1st DCA 1991); see also Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. 2d DCA 1990).
The stakes are not academic. In Compagnoni v. Compagnoni, 591 So. 2d 1080 (Fla. 3d DCA 1991), a couple divorced in Pennsylvania, resumed living together there without remarrying, then moved to Florida and married ceremonially. The trial court treated it as a two-and-a-half-year marriage; the Third District reversed. Pennsylvania then recognized common law marriage, so the marriage had run ten years, and the property division and the denial of alimony had to be redone.
Only a handful of states still allow one to be formed — Texas, Colorado, Kansas, Montana, Utah, Iowa and Oklahoma among them, with the District of Columbia. The list is shorter than it was a generation ago, and legislatures close the door prospectively rather than retroactively. So the question is never simply which states permit common law marriage today; it is whether the state permitted it, and whether you met its requirements, at the time and place you say the marriage was formed.
What do you have to prove to establish an out-of-state common law marriage?
The elements vary but cluster around three ideas. Texas states them as cleanly as anyone: the couple agreed to be married, after that agreement they lived together in the state as spouses, and they represented to others that they were married. Colorado asks much the same. Texas also presumes, rebuttably, that there was no agreement if no proceeding is brought within two years of separation.
Notice what is missing from every version: a number of years. There is no seven-year rule, in Florida or anywhere else.
What proves it is paperwork created at the time and for other reasons: joint tax returns filed as married, deeds and leases describing you as husband and wife, insurance records enrolling a spouse, a changed surname. What rarely proves it is testimony given years later by people who now disagree.
One trap recurs: the agreement and the holding out must have happened while you lived in the state that allowed it. A couple who began calling each other husband and wife only after moving to Orlando have established nothing. And recognition runs both ways — if the marriage is valid, ending it takes a dissolution of marriage.
What happens to property when an unmarried couple separates?
Property follows title. That is the whole rule, and it is harsher than people expect.
Equitable distribution exists only “in a proceeding for dissolution of marriage” under section 61.075. No marriage means no marital estate and nothing to divide. The house belongs to whoever is on the deed, the accounts to the named holder, and a retirement plan built across fifteen years belongs entirely to the person who earned it. Alimony is the same: section 61.08 permits an award only in a dissolution.
Death is where this bites hardest, because it arrives without notice. An unmarried partner takes no intestate share under section 732.102. The elective share — thirty per cent of the elective estate under sections 732.201 and 732.2065 — belongs to a surviving spouse alone, as does the homestead protection in section 732.401. Two people can live together for twenty years and find, on a Tuesday afternoon, that one of them is a legal stranger.
Do unmarried parents have the same rights in Florida?
On the children, marriage is very nearly irrelevant, with one significant exception.
Child support is calculated under the section 61.30 guidelines, which govern “whether the proceeding arises under this or another chapter.” A paternity case and a divorce case produce the same number on the same incomes, as our page on Florida child support explains. Parental responsibility and time-sharing are decided under section 61.13 on the same best-interests factors, and the court does not ask whether the parents married.
The exception is paternity. Section 744.301(1) makes the mother of a child born out of wedlock and a father who has established paternity under section 742.011 or section 742.10 both natural guardians. But if the father has not, the mother “is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” Until then an unmarried father has no automatic right to the child at all. Chapter 742 offers several routes: adjudication under section 742.011, a notarized or properly witnessed acknowledgment, or an administrative order of the Department of Revenue. An acknowledgment can be rescinded within sixty days, and afterwards challenged only for fraud, duress or mistake.
What catches fathers out is that establishing paternity is not the same as getting a schedule. Section 742.10(5) provides that however paternity is established, parental responsibility, child support and a parenting plan and time-sharing schedule “must be established in an action brought under s. 742.011.” Signing the form at the hospital makes you the legal father and liable for support. It does not give you a single enforceable overnight.
Can living with a partner affect alimony from an earlier marriage?
Yes, and the provision is stronger than most people realise. Under section 61.14(1)(b) a court must reduce or terminate alimony on specific written findings that a supportive relationship has existed between the recipient and someone not related to them by blood or marriage.
The paying party must first show, by the greater weight of the evidence, that such a relationship exists or existed in the 365 days before the petition; the burden then shifts to the recipient. The statute lists the factors the court must address in writing: whether the couple hold themselves out as married, how long they have lived together, pooled assets, financial support, joint purchases, and support of each other’s children.
Section 61.14(1)(b)3 is careful about what this means: the paragraph “does not recognize a common law marriage as valid, and does not recognize a de facto marriage.” It recognizes only that some relationships supply support equivalent to a marriage, and a conjugal relationship is expressly not required. The position is a little ironic. Florida will not treat your cohabitation as a marriage when you want it to, but will readily treat it as marriage-like when your former spouse asks the court to stop paying.
What can unmarried couples in Florida actually do?
A good deal, but all of it deliberately and, wherever possible, in advance.
- A written cohabitation agreement. In Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997), the Fifth District held that “an agreement for support between unmarried adults is valid unless the agreement is inseparably based upon illicit consideration of sexual services,” and enforced one. The same court held such agreements must be in writing. An oral understanding, however sincere, will not work.
- Deliberate titling. If you mean to own something together, own it together on the paperwork. Contribution without title is a claim you must litigate; title is a fact.
- The estate documents. A will, beneficiary designations, a durable power of attorney, a health care surrogate designation. None of it is automatic for an unmarried partner; all of it is available.
- Claims after the fact. Where nothing was documented, what remains are contract and equitable theories — express or implied agreement, unjust enrichment, a constructive or resulting trust over specific property. They are fact-intensive and expensive, and they begin from an unfavourable position, because Florida law creates no rights between people who simply live together.
- Marriage, with terms. If you are planning to marry, a prenuptial agreement keeps the certainty you had while unmarried and adds the protections you did not.
Take the question seriously in both directions. People who believe they are common law married in Florida almost never are; people who spent a few years in Texas or Colorado sometimes are without knowing it.
Common law marriage in Florida: FAQs
No. Section 741.211, Florida Statutes, provides that no common-law marriage entered into after January 1, 1968 is valid. Living together, sharing finances and having children do not create a marriage here. Florida does recognize a common law marriage validly formed in a state that permits them.
There is no such period, and the seven-year rule people refer to does not exist anywhere in American law. Two people who live together in Florida for forty years are no more married at the end than on the first day. Cohabitation can evidence an agreement to marry in a state that allows common law marriage, but is never a substitute for one.
Very likely yes. Validity is judged by the law of the place where the marriage was formed, and Florida courts have held that Florida will respect a common law marriage entered into in a state that recognizes them. You would need to show that while living in Texas you agreed to be married, lived together as spouses and told others you were married.
As a matter of family law, nothing from your partner. Equitable distribution under section 61.075 and alimony under section 61.08 exist only in a dissolution of marriage. Property follows title, so the house, accounts and retirement plan belong to whoever is named on them. What may remain are civil claims: express or implied contract, unjust enrichment, or a constructive trust.
Probably. A signed acknowledgment makes you the legal father and liable for support, but section 742.10(5) provides that parental responsibility, child support and a time-sharing schedule must still be established in an action under section 742.011. The acknowledgment gives you the status; only a court order gives you a schedule.
Yes. Section 61.14(1)(b) requires a court to reduce or terminate alimony on written findings that a supportive relationship exists or existed in the 365 days before the petition was filed. The paying spouse proves it by the greater weight of the evidence, and the burden then shifts to the recipient. The court weighs shared accounts, financial support and whether the couple hold themselves out as married. A conjugal relationship is not required.
Yes, within limits. In Posik v. Layton the Fifth District held that an agreement for support between unmarried adults is valid unless it is inseparably based upon illicit consideration of sexual services, and required that such agreements be in writing. A properly drafted one can address support, property and what happens if the relationship ends. An oral understanding will not do.
This page is general information about Florida law as of its last review and is not legal advice; whether a marriage exists is a fact-specific question a page cannot answer. Citations are to sections 2.01, 61.075, 61.08, 61.13, 61.14, 61.30, 732.102, 732.201, 732.2065, 732.401, 741.211, 742.011, 742.10 and 744.301, Florida Statutes, and to the decisions named above. Out-of-state rules change and should be checked as they stood when the marriage is said to have been formed.