Legal Commentary

It?s Spring, So It?s Time for a Romantic Story About Love and Marriage

By Eugene Volokh

The story ? let us all learn and profit by it ? is in Hall v. Maal (Fla. Ct. App. Mar. 30) (en banc). The short version: If you don?t get a marriage license ? because a week before the wedding, the groom told the bride ?that they were not going to be able to get a marriage license because they had not agreed on the pre-nuptial agreement? ? but go through the whole ceremony, live together as husband and wife, have children, and so on, you?re still not married, at least in Florida.

To depart from the requirement to have a license re-creates common-law marriage as abolished by section 741.211 [?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.? ?EV] ....

[Both parties] were aware that to become married in Florida they were required to appear before the clerk of the court together and apply for and receive a marriage license.... Although there is little doubt that [the woman] genuinely wanted to be married, she could not have reasonably believed she achieved that aim after engaging in a wedding ceremony in full knowledge that neither [party] had ever applied for a marriage license....

?The parties were not in substantial compliance with Chapter 741.... [I]n order for there to be substantial compliance, there has to be some compliance. Some compliance would, at a minimum, entail the parties applying for and receiving a license.

Some judges dissent, arguing (among other things) that ?The Legislature did not prohibit marriage without a license; instead, it created a type of registration to ensure certain criteria are met. The Legislature?s statute is consistent with the recognition that a ceremonial marriage between an adult man and an adult woman unrelated by blood should not be rendered invalid merely because the couple did not obtain a governmental license.?

Full post as published by The Volokh Conspiracy on March 31, 2010 (boomark / email).