JOSEPH J. MARSHALL, JR., AND JOHN MARSHALL, AS ANCILLARY EXECUTORS OF THE ESTATE OF JOSEPH MARSHALL, DECEASED, APPELLANTS,
v.
ALICE SARAR, AN UNMARRIED WOMAN, APPELLEE
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The appellants sought to partition property allegedly held by their deceased father as a tenant in common with the defendant. The trial court dismissed the complaint based on finding that a common law marriage existed between the deceased and the defendant. The appellate court reversed, holding that no common law marriage was established due to lack of mutual consent.
No common law marriage was established. The court held that the fundamental element of a common law marriage is the mutual agreement of the parties to marry—there must be consent per verba de praesenti. Living together and holding oneself out as man and wife is insufficient without this essential agreement.
“The fundamental element of the common law marriage is the agreement of the parties. There must be mutual consent to marry per verba de praesenti.”
Establishes the legal requirement for a valid common law marriage and what the trial court failed to find.
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Join FLexlaw to unlock all legal intelligenceThe defendant and the deceased Marshall began living together in 1952 while the defendant was still married to another man (Serrafinski), who died app…
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The plaintiff-appellants seek review of a final decree dismissing their complaint. The dismissal was based upon the chancellor’s determination that the defendant had proved a common law marriage.
The plaintiffs sought partition of certain property which they alleged was held by their father at his death as a tenant in common with the defendant. The answer alleged that the property in question was the homestead of the parties and that the defendant, as the widow of the deceased, was entitled to ownership and possession.
Although the appellants have raised a number of points upon which they rely *259for reversal, we conclude the determinative question is whether or not a common law marriage was established.
It appears from the testimony that the defendant and the now deceased Marshall commenced living together in 1952, at which time the defendant was married to one Ser-rafinski, who died approximately eight months prior to the death of Marshall. Appellants have contended, and at this point it must be observed, that when the relationship between a man and a woman living together is meretricious in the beginning, it is presumed to continue until a changed relation is shown. See Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485; McClish v. Rankin, 153 Fla. 324, 14 So.2d 714; Jordan v. Jordan, Fla.1956, 89 So.2d 22; Van Derven v. Van Derven, Fla.App. 1958, 105 So.2d 805.
There is no testimony or other evidence in the record of any agreement between the parties to become man and wife. In fact, the testimony of the defendant is to the effect that there was no agreement and clearly evidenced a total lack of mutual consent to marry.
In Van Derven v. Van Derven, supra, we held that evidence in the record that the parties lived together and held themselves out as man and wife is far short of the requirement to establish a common law marriage. The fundamental element of the common law marriage is the agreement of the parties. There must be mutual consent to marry per verba de praesenti. See In re Price’s Estate, 129 Fla. 467, 176 So. 492; Carretta v. Carretta, Fla.1952, 58 So.2d 439; Jordan v. Jordan, supra.
Accordingly, the decree appealed from is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
PEARSON and CARROLL, CHAS., JJ-, concur.
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In re Est. of Ben Marden v. Gertrude Bacon, 355 So. 2d 121 (Fla. 3d DCA 1978)…rdan v. Jordan, 89 So. 2d 22 (Fla.1956), the Supreme Court said “appellant has an additional burden to carry of showing the transition, if any, from concubinage to marriage, since the relationship was conceived meretriciously”. . Marshall v. Sarar, 118 So. 2d 258, 259 (Fla. 3d DCA 1960); Jordan v. Jordan, supra, footnote 5; Duey v. Duey, 343 So. 2d 896 (Fla. 3d DCA 1977). . See 1 J. Bishop, Marriage and Divorce, § 457 (6th Ed. 1881). . Bishop, supra. . Such ruling was assigned as error by appel-lees but h…
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In re Est. of Bert S. Hind v. Whitley, 135 So. 2d 13 (Fla. 2d DCA 1961)…ered into between them rests on the party asserting the fact of such agreement, the presumption being that a relation which is immoral -in its inception continues to be so.” The weight of this burden is indicated in Marshall v. Sarar, Fla.App.1960, 118 So. 2d 258, 259, wherein the court said: “In Van Derven v. Van Derven, supra [Fla.App., 105 So. 2d 805], we held that evidence in the record that the parties lived together and held themselves out as man and wife is far short of the requirement to establish a…
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Sikes v. Guest, 170 So. 2d 322 (Fla. 2d DCA 1964)…pare Chaachou v. Chaachou, Fla.1954, 73 So. 2d 830, 835, 839. The latter case recognizes that where a party to an alleged common-law marriage contract denies it corroborative evidence becomes more material. See also Marshall v. Sarar, Fla.App. 1960, 118 So. 2d 258, 259. Much of the argument contained in the briefs concerns presumptions with respect to the status of marriage. It is true that one of the strongest evidentiary presumptions known to the law is that which presumes the validity of a last formalized…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Othelia M. McCLISH v. Rankin, 153 Fla. 324 (Fla. 1943)
- In re : Estate of Rosa Price, 129 Fla. 467 (Fla. 1937)
- Carretta v. Carretta, 58 So.2d 439 (Fla. 1952)
- Jordan v. Jordan, 89 So. 2d 22 (Fla. 1956)
- van Derven v. van Derven, 105 So. 2d 805 (Fla. 3d DCA 1958)