JAMES MAYNARD PHILLIPS, II, APPELLANT,
v.
ELIZABETH SANDRA PHILLIPS, APPELLEE
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In this interlocutory appeal from an order granting temporary alimony and child support, the Florida District Court of Appeal upheld the trial court's finding that the wife established a prima facie common law marriage with the husband, while preserving the ultimate question of marriage validity for trial on the merits.
The appellate court affirmed the trial court's finding that the wife made a prima facie showing of the existence of a common law marriage, as required to obtain temporary alimony in such a case. However, the court clarified that this prima facie finding does not resolve the ultimate question of whether a valid common law marriage existed, which remains for trial on final hearing.
“On an application for temporary alimony in such a suit it was incumbent upon the wife to make a prima facie showing of the existence of a common law marriage.”
Establishes the legal standard the wife must meet to obtain temporary alimony when claiming a common law marriage.
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Join FLexlaw to unlock all legal intelligenceThe appellee Elizabeth Sandra Phillips filed for divorce in January 1967, alleging a common law marriage with appellant James Maynard Phillips, II beg…
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On January 26, 1967, the appellee Elizabeth Sandra Phillips filed a complaint for divorce against the appellant James Maynard Phillips, II, charging extreme cruelty. She alleged the parties had entered into a common law marriage on or about October 16, 1965, and that she was with child, and prayed for a divorce and for temporary and permanent alimony and attorney fees. Thereafter, by an amended complaint, the wife alleged there had been a reconciliation, during which the child had been born, and again charged the defendant with extreme cruelty. The husband answered the amended complaint. A second amended complaint was filed on April 3, 1968, which adopted the allegations of the prior complaints and elaborated on the allegations relating to the claimed common law marriage. The husband answered, admitting the birth of the child and allegations as to his ownership of certain bank accounts, and denying the other allegations.
The wife applied for and obtained an order for temporary alimony and child support. In that order the trial court found “the plaintiff has established a prima facie marriage to the defendant by competent evidence and testimony of her witnesses.” On this interlocutory appeal taken by the husband from that order, the determinative question is whether the evidence supports that finding.
Common law marriages were recognized in Florida prior to the act of the legislature in 1967 (Ch. 67-571; F.S.1967, § 741.211 F.S.A.), which provided that none such made after January 1, 1968, would be valid.
On an application for temporary alimony in such a suit it was incumbent upon the wife to make a prima facie showing of the existence of a common law marriage. See Chaachou v. Chaachou, Fla. 1954, 73 So.2d 830, 832, where the Supreme Court so held, rejecting an earlier statement in Fincher v. Fincher, Fla.1952, 55 So. 2d 800, that as a predicate to allowance of temporary alimony to a wife claiming common law marriage it is not enough to show the existence of the marriage prima facie, but its existence should be determined conclusively.
A common law marriage generally is established by evidence of cohabitation and repute, and of an agreement between the parties per verba de praesenti to be husband and wife. The last mentioned element is essential. McBride v. McBride, Fla.App.1961, 130 So.2d 302, 303. And see LeBlanc v. Yawn, 99 Fla. 328, 126 So. 789.
Without attempting to detail the evidence presented to the trial court on *85the wife’s application for temporary alimony in this case on examination thereof we hold, as did the able trial judge, that the wife duly met the requirement to make a prima facie showing of the existence of a common law marriage.
Notwithstanding the finding of the trial court that the wife made a prima facie showing of the existence of a common law marriage, and our affirmance thereof, the disputed issue of common law marriage remains for trial and decision on final hearing.
Affirmed.
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Lowe v. Broward Cnty., 766 So. 2d 1199 (Fla. 4th DCA 2000)…iages. Budd v. J.Y. Gooch Co., 157 Fla. 716, 27 So. 2d 72, 74 (1946). Elements of common law marriage in Florida include cohabitation and the essential element of a mutual agreement between the parties “to be husband and wife.” Phillips v. Phillips, 215 So. 2d 83, 84 (Fla. 3d DCA 1968) (citation omitted). As discussed above, a domestic partnership created by the Act does not rise to the level of a traditional marital relationship. We find no constitutional violation as a result of section 798.02, Florida St…
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Cohen v. Mali Ben Shushan, 212 So. 3d 1113 (Fla. 2d DCA 2017)…le must share a common household, maintain a family life, and not be married to other people. Both relationships are created by the parties themselves by agreeing to be. married in the present and then behaving accordingly. See Phillips v. Phillips, 215 So. 2d 83, 84 (Fla. 3d DCA 1968) (“A common law marriage generally is established by evidence of cohabitation and repute, and of an agreement between the parties per verba de praesenti to be husband and wife.”). Neither is formed by governmental authority but…
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Duey v. Duey, 343 So. 2d 896 (Fla. 3d DCA 1977)…ist: general repute, cohabitation, capacity and present assent to become man and wife, i. e., words per verba de praesenti. Chaves v. Chaves, 79 Fla. 602, 84 So. 672 (1920); Marden v. Marden, 276 So. 2d 493 (Fla. 4th DCA 1973); Phillips v. Phillips, 215 So. 2d 83 (Fla. 3d DCA 1968). While it is uncontradicted that the parties cohabitated together and held themselves out to the world as being husband and wife — bought property in their joint names, filed joint income tax returns, etc., there is noticeably la…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- LeBlanc v. Yawn, 99 Fla. 328 (Fla. 1930)
- Chaachou v. Chaachou, 73 So. 2d 830 (Fla. 1954)
- Fincher v. Fincher, 55 So.2d 800 (Fla. 1952)
- McBRIDE v. Ola Mae McBRIDE, 130 So. 2d 302 (Fla. 2d DCA 1961)