ALMA MARDEN, APPELLANT,
v.
BEN MARDEN, APPELLEE
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Alma Marden appealed a summary judgment dismissing her common law marriage claim against Ben Marden. The court reversed, holding that genuine issues of material fact regarding the essential elements of common law marriage precluded summary judgment and required a full trial.
The court reversed the summary judgment, holding that genuine issues of material fact concerning the essential elements of common law marriage—particularly regarding present assent to become man and wife—precluded judgment as a matter of law and required full exploration at trial.
[1] Summary judgment is improper when genuine issues of material fact exist, precluding judgment as a matter of law.
[2] To establish a common law marriage, there must be general repute, cohabitation, and a present assent to become husband and wife.
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Join FLexlaw to unlock all legal intelligence“To prima facie prove a common law marriage, there must be general repute, cohabitation and a present assent to become man and wife.”
Establishes the legal test for proving a common law marriage under Florida law.
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Join FLexlaw to unlock all legal intelligenceAlma Marden and Ben Marden met in 1944 while each was married to others. After both obtained divorces, they allegedly lived and traveled together as h…
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Summary judgment was entered in favor of Ben Marden, the alleged husband and defendant appellee. We reverse because the record shows there are genuine issues as to material facts which preclude the movant here from obtaining judgment as a matter of law. Rule 1.510(c), F.R.C.P., 31 F.S.A.
Alma Marden brought suit alleging that the parties had established a common law marriage and seeking permanent alimony, suit money, attorneys’ fees, and a restraining order to prevent the defendant from disposing of a condominium that the parties had been using as their residence. The parties met in 1944 when they were both married to others. Subsequently each was divorced and, according to Alma, began living and traveling together as husband and wife from 1960 to 1970. Ben denies this, alleging she was merely a girl friend.
To prima facie prove a common law marriage, there must be general repute, cohabitation and a present assent to become man and wife. Carretta v. Carretta, Fla.1952, 58 So.2d 439. In this case plaintiff may have a difficult and heavy burden of proof if she is to finally prevail, based on the fact that a) the relationship was meretricious in its inception, b) there are seeming inconsistencies in her testimony, c) there are certain obscurities as to whether the couple’s understanding was a “present assent” to be married or a conditional future agreement to be married.
None of the above hardships should influence a trial judge to grant a summary judgment where there are fact issues. As stated in Williams v. Caterpillar Tractor Co., Fla.App.1963, 149 So.2d 898:
“In ruling on a motion for summary judgment a trial judge is better advised not to attempt, on the basis of a study of discovery depositions, to resolve the question of the sufficiency of evidence not yet adduced. The question properly determined on motion for summary judgment is whether or not there exist in the cause genuine issues of material fact. While the court may be convinced that a plaintiff will have insurmountable difficulties in proving his case, it should not by summary judgment prevent him from attempting to do so when, as in this case, so many questions of fact appear, on the the strength of the record, to remain controverted. Whether or not the plaintiff’s allegations and the statements made in discovery depositions in support thereof can be proved at trial is a matter beyond the scope of summary judgment proceedings.” (Emphasis supplied.)
We have carefully screened the record here and find that there are substantial conflicts in the evidence and different interpretations and inferences that can be gained. These center upon the ingredients of a common law marriage and particularly the matter of a present assent to become man and wife. However, it can not be said *495as a matter of law that the marriage existed or not. The requirements of law indicate that the judgment here was premature and that the issues should be fully explored at a regular trial.
Reversed and remanded.
OWEN and MAGER, JJ., concur.
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In re Est. of Ben Marden v. Gertrude Bacon, 355 So. 2d 121 (Fla. 3d DCA 1978)…ed to the communications or subjects in question. It is analogous to the rule that limits cross-examination to the matters brought out on direct.11 We find this assignment of error to be without merit. The judgment is affirmed. . Marden v. Marden, 276 So. 2d 493 (Fla. 4th DCA 1973), cert. denied 283 So. 2d 365 (Fla. 1973). . The Court was referring to the depositions and affidavits before it at that time. . Ben Marden died a few days before the release of the District Court’s decision. The estate of Ben M…
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Reed v. JIM Moran Pontiac, Inc., 292 So. 2d 392 (Fla. 4th DCA 1974)…ng at the whole record and the inferences to be gained therefrom, it is our view that there were genuine issues as to material facts that stood in, the way of defendant’s motion for summary judgment. Rule 1.510 F.R.C.P., 31 F.S.A., Marden v. Marden, 276 So. 2d 493 (4th D.C.A.Fla. 1973); Playcare, Inc. v. Battaglia, 280 So. 2d 34 (4th D.C.A.Fla.1973); Sarasota County v. Stanton Investment Co. of Missouri, 283 So. 2d 152 (2d D.C.A.Fla.1973); American Bankers Ins. Co. of Florida v. Nolan’s Garage, Inc., 262 So.…
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Duey v. Duey, 343 So. 2d 896 (Fla. 3d DCA 1977)…law marriage to exist, the following prerequisites must exist: 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, fil…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. Caterpillar Tractor Co., Inc., 149 So. 2d 898 (Fla. 2d DCA 1963)
- Carretta v. Carretta, 58 So.2d 439 (Fla. 1952)