Your office has raised a question concerning the validity of the purported marriage
between Rose Y~ (S~) and Barnet S~. Rose Y~ (S~) was receiving remarried widow's benefits
on the record of Sol Y~ (She had married Irving V~ on June 14, 1974.) When Mr. V~
died on November 30, 1977, Ms. Y~ began receiving widow's benefits.
A direct deposit authorization form signed by Ms. Y~ as Rose Y~ S~ led to an investigation
of her marital status. Records revealed that she had married Barnet S~ on June 14,
1978 with the ceremony being performed by a rabbi. Ms. Y~ S~ has stated that her marriage
to Mr. S~ is not a valid marriage in that no marriage license was obtained. She further
stated that the ceremony was performed for the benefit of her children because she
and Mr. S~ were living together.
Section 741.08 of the Florida Statutes Annotated provides that:
Before any of the persons named in §741.07 shall solemnize any marriage, he shall
require of the parties a marriage license issued according to the requirements of
§741.01, and within ten days after solemnizing the marriage he shall make a certificate
thereof on the license, and shall transmit the same to the office of the county court
judge or clerk of the circuit court from which it issued.
In addition, Section 741.211 of Florida Statutes Annotated provide that:
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.
The Florida courts were presented with a somewhat similar fact situation in a 1974
case, Litzky v. Ullman, 296 So.2d 638 (1974). In Litzky, the marriage ceremony was performed by an Orthodox Jewish rabbi, Louis B~, in accordance
with the rules and traditions of the Orthodox Jewish faith. The couple was issued
a "Ksuba", a Hebrew marriage certificate, by Rabbi. However, no marriage license was
obtained in accordance with the provisions of Ch. 741, Florida Statutes Annotated.
When Isaac L~ died intestate, Rose Z~ (L~) filed her notice of election to take dower.
She resided with the decedent but apparently used the names and Z~
Based on this evidence, the court entered a finding that Florida Statutes Annotated
S741.211 invalidated common-law marriages entered into after January 1, 1968 and that
the wording of the statute does not indicate any legislative intention to distinguish
a religious or ceremonial marriage from a common-law marriage. The court further rendered
its interpretation of Section 741.211 as invalidating all marriages which are not
entered into by the parties in good faith and in substantial compliance with the laws
pertaining to marriage.
In your case, there is also a marriage by a rabbi and a failure to obtain a license.
According to Ms. Y~ (S~), no record of the marriage was made by state officials. She
also presented copies of her electric bills which show she used the name "Y~". She
further stated that she files her income tax returns as a single individual. However,
she has a joint account with Barnet S~ and her name is printed on the checks as Rose
Y~ S~, the name she used when she requested a direct deposit of her checks.
Generally, compliance with license statutes is not essential to the validity of a
marriage in the absence a statutory provision expressly making it essential. See, B~, James H~ - - [Chi - AFA] - R~ to AO, -11/30/44; S~ , William M~ - [N.O. AFA]
- H~ to N.O. AO, 06/22/45. Florida is apparently applying a two-prong test to determine
the validity of the marriage. The marriage must be entered into in good faith and
in substantial compliance with the laws pertaining to marriage. We are of the opinion
that further development of the facts surrounding the marriage should be undertaken
to determine the level of compliance with the statutes pertaining to marriage in Florida
(Chapter 741 of the Florida Statutes Annotated) and whether the marriage was entered
into in good faith.
In addition to evaluating the evidence in the record, you should further explore such
(1) whether Ms. Y~ (S~) got a blood test or otherwise complied with any of the statutory
prerequisites for marriage, (2) whether Ms. Y~ (S~) represents herself to her friends
and neighbors as the "wife" of Barnet S~, and (3) whether Ms. Y~ (S~ has represented
in other circumstances that the marriage was not "real" .