Marriage Flashcards
Marriage
Marriage is a civil contract “plus” where parties must be legally capable of consent.
Marriage can only be terminated by the State, so parties need judicial adjudication to terminate the marriage.
The gov’t has a state interest in the institution of marriage and can constitutionally impose some regulations.
No need for separate consideration for a marriage.
Same sex marriage
Valid in all states and all states must recognize a valid same sex marriage from another state.
Types of marriages
Ceremonial marriage
Common law marriage
Ceremonial marriage
Requires 3 Cs:
consent,
capacity, and
compliance with formalities.
Consent
No fraud, misrepresentation, mistake, or duress.
Capacity
Mental capacity
-capable to understand the nature of the act of marriage.
Age
- minimum 18 years
- 17 can marry if has consent of parent/guardian, and the other party is not more than 2 years older than minor.
Consanguinity
- No full/half blood relatives,
- No lineal descendants,
- First cousins can legally marry in FL,
- Adoptive relatives can marry if were not related prior to adoption.
Compliance w/ formalities
Licensing Requirements
Licensing requirements
- Age (18 or 17)
- 3 day waiting period unless waiver for good cause, non-FL resident, or completion of pre-marital preparation course.
- Verification of receipt & reading FL Family Law Handbook issued by FL State Bar on Marriage
- If license lost/defective, marriage can be proved by 2 witnesses w/ affidavits re where marriage took place & where license was filed.
Marriage license will NOT be issued if:
- A party is already married to someone else
- Parties are too closely related
- Parties are too young
- Marriage is a sham
- Parties are incapable of understanding nature of the act
Compliance w/ formalities
Solemnization (ceremony)
Solemnization by a judge, political official, or clergy who certifies the license w/in 10 days & returns it to the licensing office.
Proxy marriage are NOT valid in FL.
There is no requirement that spouse takes other’s surname.
-If assumed, spouse may revert to use a maiden name w/o legal process.
Common law marriage
Abolished in FL, but CL Marriage prior to 1968 are valid.
Under FF&C Clause, FL cts will recognize valid CL marriages from another state.
Requirements for CL Marriage
(1) Couple agrees that they are marriage,
(2) they cohabitate as a married couple,
(3) hold themselves out to the public as married,
(4) have capacity to marry, and
(5) intent in present tense “we are married”
*Cohabitation alone is not sufficient.
Burden of proof to prove CL marriage
Majority: clear and convincing evidence.
Minority: preponderance of evidence
Look to parties’ conduct, including:
- joint finances, assets & debts
- common children
- signed docs as married: taxes, insurance, school forms, medical docs
- other conduct: rings, mail, family, neighbors, etc.
Heart balm actions
Abolished in Florida.
Action to seek monetary compensation for end of a marriage.
