Opinion
Case No. 1D08-4776.
Opinion filed October 20, 2009.
An appeal from the Circuit Court for Escambia County. Paul A. Rasmussen, Judge.
John L. Myrick, Pensacola, for Appellant/Cross-Appellee.
Gregory D. Smith, Pensacola, for Appellee/Cross-Appellant.
Appellant, Kimberly Hall, appeals a final judgment of paternity which encompassed an earlier determination that the parties were not legally married. Hall argues that, although the parties did not obtain a marriage license, the trial court erroneously denied her claim that a valid marital relationship did exist. On cross-appeal, Appellee/Cross-Appellant Dr. Roberto Maal seeks reimbursement for overpayment of child support. For the reasons that follow, we reverse the trial court's finding that the parties' marriage was invalid and remand for further proceedings. We affirm the trial court's determination that Dr. Maal is ineligible for reimbursement of child support.
Facts
Hall and Dr. Maal participated in a religious marriage ceremony on March 2, 2002. Before the ceremony, the couple took part in premarital counseling with the presiding minister, but neither party obtained a marriage license. Although Dr. Maal assured Hall that he would obtain the license, he never did so. In the days leading up to the ceremony, the minister repeatedly asked Dr. Maal the whereabouts of the license, to which Dr. Maal replied that he had left the license at home. After the ceremony, the minister's repeated calls to Dr. Maal went unreturned. One year later, on March 11, 2003, the parties did apply for and obtain a marriage license; however, the marriage was never solemnized before a notary or clergy.
In the years following the 2002 ceremony, two children were born of the relationship, and Dr. Maal referred to Hall as his wife and Hall referred to Dr. Maal as her husband. The mortgage on the parties' home referred to them as "Roberto Maal and Kimberly Maal, husband and wife." Hall was also referred to as Mrs. Maal at her place of business, although her name was never legally changed. The parties did not file a joint tax return at any time.
On April 18, 2006, Hall filed a Petition for Dissolution of Marriage. Dr. Maal responded by filing an answer and counter-petition to establish paternity, wherein he denied the existence of a valid marital relationship. Hall then filed a "Motion Requesting Judicial Determination of a Valid Marital Relationship." The court held a hearing on the motion, finding that a valid marital relationship did not exist.
In October 2006, upon agreement of both parties, the trial court entered a temporary child support order directing Dr. Maal to provide Hall with $5,000 per month in child support. Approximately one year later, the child support was modified to $2,528 per month plus an additional $1,000 per month for services for the parties' special needs child. On September 2, 2008, a final judgment of paternity was entered. Hall now appeals, arguing that the trial court incorrectly ruled that the lack of a marriage license was fatal to the existence of a valid marital relationship.
Analysis
The procedures for contracting a valid marriage in Florida are regulated by Chapter 741, Florida Statutes. Section 741.211, Florida Statutes, states that "[n]o 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." (Emphasis added.) Thus, a marriage must substantially comply with the statutory licensing and solemnization requirements. See § 741.211, Fla. Stat. (2002).
In order to obtain a marriage license, applicants must file an application, application fees, and a signed and notarized written affidavit. §§ 741.01—.04, Fla. Stat. (2002). Next, the marriage must be solemnized within 60 days of issuance of the marriage license. § 741.041, Fla. Stat. (2002). Finally, the official who solemnized the marriage must certify that fact on the license, specify the date and place of the marriage, and return the completed license to the issuing county court judge or clerk of the circuit court within 10 days of solemnizing the marriage. Id.; § 741.08, Fla. Stat. (2002).
While Chapter 741 does not provide a definition of "solemnization," it does provide that
[b]efore any of the persons named in s. 741.07 shall solemnize any marriage, he or she shall require of the parties a marriage license issued according to the requirements of s. 741.01, and within 10 days after solemnizing the marriage he or she 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.
§ 741.05, Fla. Stat. (2002). Under Chapter 741, Florida Statutes, the Legislature regulates solemnized marriages by imposing licensing fees along with providing a fee reduction for couples who undergo premarital counseling. It further provides assistance to domestic violence victims and batterer's intervention programs. See generally Ch. 741, Fla. Stat. (2002). The Legislature does not, however, expressly state anywhere in Chapter 741 that marriages conducted without a license are invalid or prohibited. In contrast, same-sex and incestuous marriages are prohibited. §§ 741.21, 741.212, Fla. Stat. (2002).
As noted above, common-law marriages are void. § 741.211, Fla. Stat. (2002). A common-law marriage is defined as "[a] marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple." Lowe v. Broward County, 766 So. 2d 1199, 1210-1211 (Fla. 4th DCA 2000) (citing Black's Law Dictionary, 986 (7th ed. 1999)). Under the facts of this case, the parties' relationship was not a common-law marriage; rather, in light of the wedding ceremony, it was an unlicensed marriage.
It is clear that the Legislature has prohibited and invalidated same-sex and incestuous marriages, but it has not invalidated unlicensed marriages. The absence of an express invalidation of unlicensed marriages may be considered an expression of legislative intent under the canon of statutory construction known as expressio unius est exclusio alterius.Preweitt Mgmt. Corp. v. Nikolits, 795 So. 2d 1001, 1005 (Fla. 4th DCA 2001). This rule "requires that when a law expressly describes a particular situation where something should apply, an inference must be drawn that what is not included by the specific reference was intended to be omitted or excluded." Id. Where the Legislature has not expressly prohibited or invalidated unlicensed marriages, we decline to read such prohibition or invalidation into Florida law. See, e.g., State v. Rife, 789 So. 2d 288,293-94 (Fla. 2001) (holding that legislature did not expressly prohibit downward-departure sentences in cases involving a minor's consent to sexual activity, thus, courts have authority to impose such sentences). It would be a violation of the separation of powers under Article II, Section 3 of the Florida Constitution for this court to read such an express prohibition into a statute where it does not exist. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
The Legislature has provided an exception for validating marriages that do not meet the exact statutory criteria set out in Chapter 741: "[N]othing 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." § 741.211, Fla. Stat. (2002). We note that the Legislature is quite capable of writing a strict statute that allows no exception for unlicensed marriages. The Legislature has done just that regarding unlicensed drivers, unlicensed lawyers, unlicensed doctors, and various other activities too numerous to mention. See, e.g., §§ 322.03, 454.23, 458.327, Fla. Stat. In many of these situations, the unlicensed person may incur criminal liability; however, these situations provide no defense for "good faith" assertions made in "substantial compliance" with the relevant statutes.
A review of the law in other jurisdictions demonstrates that in order to invalidate unlicensed marriages, such an invalidation is expressly stated in the laws of the state. See, e.g., In re Silverman's Estate, 227 A.2d 519 (N.J. Super. A.D. 1967) (citing N.J. Stat. Ann. § 37:1-10 and noting that the legislature expressly set out to abolish common-law marriages and to invalidate marriages that occur without a license by stating unequivocally that no marriage "shall be valid unless the contracting parties have obtained a marriage license."); Dire v. Dire-Blodgett, 102 P.3d 1096, 1097-98 (Idaho 2004) (holding that a marriage license is required for a valid marriage where the law expressly states that "[c]onsent alone will not constitute marriage; it must be followed by the issuance of a license and a solemnization as authorized and provided by law."); Carabetta v. Carabetta, 438 A.2d 109 (Conn. 1980) (holding that a marriage that had been solemnized by a religious ceremony without a license was not void where Connecticut Statutes state that "[n]o persons shall be joined in marriage until both have joined in an application for a license for such marriage. . . ." but also provided for only a fine for those who married without obtaining a license and also that certain other marriages were void); but see Harlow v. Reliance Nat., 91 S.W.3d 243 (Tenn. 2002) (holding that a party was not a surviving spouse and thus was not entitled to death benefits under workers' compensation law because a marriage license was not obtained and Tennessee law provides that parties "shall" provide a license before joining parties in marriage); Parks v. Martinson, 694 So. 2d 1386 (Ala. Civ. App. 1997) (holding that no valid statutory marriage occurred where the parties did not obtain a license and statutory law required that "[n]o marriage shall be solemnized without a license.").
The Fifth District Court of Appeal addressed a similar set of facts under Oregon law. In Preure v. Benhadj-Djillali, 15 So. 3d 877 (Fla. 5th DCA 2009), the parties participated in a religious ceremony in Oregon, but never applied for or obtained a marriage license. Ms. Preure claimed there was a valid marital relationship, although she admitted that a marriage license is required in Oregon for a lawful marriage to exist.Id. at 877-78. She relied on section 106.150(2) of the Oregon Revised Statutes, which provided that all marriages not affected by legal impediments that are solemnized in a religious ceremony are valid. Id. However, the court determined that the additional statement in section 106.150(2), which provided that the person presiding over the ceremony shall deliver the marriage license to the county clerk who issued the license, presupposes the existence of a license and that the savings clause relied on by Preure was inapplicable. Id. Therefore, the court found that there was no valid marital relationship under Oregon's laws. Section 741.211, Florida Statutes, however, which includes Florida's good faith and substantial compliance "savings clause," does not include the same presupposition that a license exists.
An unlicensed marriage is analogous to an unrecorded deed. "A deed is merely an instrument formally evidencing the transfer of an intangible title interest in and to land and when delivered it fulfills its purpose and is exhausted and remains only as evidence of the transfer that occurred." Cain Bultman, Inc. v. Miss Sam, Inc., 409 So. 2d 114, 120 n. 5 (Fla. 5th DCA 1982). An unrecorded deed does not indicate that there was no transfer of land. See Sasha Sasha, Inc. v. Stardust Marine, S.A., 741 So. 2d 558 (Fla. 5th DCA 1999) (holding that where a deed was unrecorded, the transfer of the land at issue is deemed to have occurred just prior to commencement of action under the Uniform Fraudulent Transfer Act). Likewise, in our view, the lack of a marriage license does not indicate that a marriage did not occur, but that there is a lack of evidence of the marriage that could be fatal to an argument asserting a valid marriage.
We decline to hold that a solemnized marriage without a marriage license is per se invalid. "Marriage is one of the `basic civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. State of Oklahoma, 316 U.S. 535, 541 (1942)). This fundamental right of a man and a woman to marry cannot be denied on the basis of ambiguous statutory language. "Once a marriage has been ceremonially entered into, it is presumed to be legal and valid." Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. 5th DCA 1987) (citing Grace v. Grace, 162 So. 2d 314 (Fla. 1st DCA 1964)). Chapter 61 does not require that a party seeking to dissolve a marriage provide any evidence of the existence of a marriage license. § 61.052(7), Fla. Stat.; see, e.g., Cobo v. Sierralta, 13 So. 3d 493 (Fla. 3d DCA 2009).
Additionally, there is a strong presumption of legitimacy attached to children born in wedlock. Knauer v. Barnett, 360 So. 2d 399, 403 (Fla. 1978). Chapter 741 provides that "[t]he state has a compelling interest in promoting not only marriage but also responsible parenting." § 741.04(1), Fla. Stat. (2002). Further, the purpose of Chapter 61, Florida Statutes, which governs the dissolution of marriage, includes the preservation of the integrity of marriage and the safeguarding of "meaningful family relationships." § 61.001, Fla. Stat.
The legislative absence of an express invalidation of unlicensed marriages, combined with the importance of marriage recognized in the law, leads us to our conclusion that unlicensed marriages are not facially invalid. While we recognize that the regulation of marriage is within the purview of the legislative branch, should the Legislature intend to invalidate all unlicensed marriages, then Florida's laws should contain an express statement of such invalidation. To hold otherwise and declare that an unlicensed marriage is invalid in all circumstances, absent a clear legislative intent, would have wide-sweeping ramifications. The existence of a valid marriage affects confidential spousal communications, wrongful death and workers' compensation claims, and social security benefits.See, e.g., Blackburn for Blackburn v. Taylor, 566 So. 2d 915 (Fla. 1st DCA 1990) (holding that claimant was a surviving spouse of the deceased and thus entitled to workers' compensation death benefits); Yokie v. State, 773 So. 2d 115 (Fla. 4th DCA 2000) (holding that the defendant's conversation with his spouse was protected by marital privilege); King v. Font Corp., 612 So. 2d 662 (Fla. 2d DCA 1993) (holding that a mother was a father's "surviving spouse" and thus entitled to an award of lost support and services under the Wrongful Death Act); Hisquierdo v. Hisquierdo, 439 U.S. 572, 575 (1979) (discussing a spouse's entitlement benefits under the Social Security Act). We think that such a monumental decision is best left to the Legislature, which can unequivocally declare its intent that all unlicensed marriages are invalid.
In light of our holding, pursuant to section 741.211, it follows that if Hall, the party asserting the marriage, entered into the marriage in good faith and substantial compliance with Chapter 741, then the parties' marriage may be valid. Both the Third and Fourth District Courts have addressed whether a marriage existed based on substantial compliance with Chapter 741, Florida Statutes. See Metropolitan Dade County v. Shelton, 375 So. 2d 32 (Fla. 4th DCA 1979); Litzky v. Ullman, 296 So. 2d 638 (Fla. 3d DCA 1974). In Litzky, a couple had a religious marriage and was issued a Hebrew marriage certificate from their rabbi.Litzky, 296 So. 2d at 639. No marriage license was obtained pursuant to Chapter 741, Florida Statutes. Id. Their mailbox read "Mr. and Mrs. Issac Litzky and Rose Zyontz." Id. The wife collected social security benefits as the widow of her deceased husband. Id. The trial court found that the wording of section 741.211, Florida Statutes, "does not indicate any legislative intention to distinguish a religious or ceremonial marriage from a common-law marriage." Id. The Third District found no reversible error, holding that there was no legal marriage and reasoning that "the law of Florida now provides for only one kind of marriage, one which is entered into by the parties in good faith and in substantial compliance with Chapter 741." Id.
In contrast, Shelton involves more of a clerical error. There, the Fourth District distinguished Litzky, finding that the dissimilar facts demonstrated substantial compliance with Chapter 741. Shelton, 375 So. 2d at 33. In Shelton, the deputy clerk of the court erroneously advised the parties that they could go ahead with their planned wedding ceremony on a Friday and have the marriage license issued on the following Monday. Id. The deputy clerk also advised the notary public at the chapel that this was proper. Id. at 33-34. One month after the ceremony, the wife petitioned for dissolution and filed an alternate petition for annulment, apparently upon discovering that workers' compensation benefits would be terminated if there had been a valid marriage. Id. at 33. The court held that there was a valid marriage, finding that the particular facts and circumstances demonstrated substantial compliance with Chapter 741, Florida Statutes. Id. The court found there was no question as to the parties' good faith and that "both of them intended to enter into a valid marriage and both assumed that the licensing procedure suggested by the clerk was valid." Id.
Hall appears to have substantially complied with Chapter 741 by taking part in premarital counseling, participating in a marriage ceremony by an authorized minister, and entering into a marriage that is not common law, same sex, or incestuous in nature. See generally Ch. 741, Fla. Stat. (2002). Her apparent substantial compliance is further evidenced by the parties' attempt to obtain a license a year after the marriage ceremony. Dr. Maal essentially argues that Hall's actions were nothing more than "sound and fury, signifying nothing." William Shakespeare, The Tragedy of Macbeth act. 5 sc. 5. Contrary to his argument, these actions may demonstrate substantial compliance with Chapter 741. We further note that "proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings." Rosen v. Rosen, 696 So. 2d 697, 700 (1997) (internal citations omitted).
Based on the facts of this case, which was initiated under Chapter 61, it appears that Dr. Maal may have unclean hands. Any equitable result would include a validation of the parties' relationship if it can be shown that Hall entered into the marriage in good faith and in substantial compliance with Chapter 741. The trial court, however, made no factual findings regarding whether Hall entered into the marriage in good faith. As such, a remand is required for the trial court to make such a determination.
Cross-Appeal
Dr. Maal argues that the trial court erroneously denied his request for reimbursement for overpayment of child support during the time he provided $5,000 per month based on the parties' stipulated agreement. Approximately one year later, the amount was modified pursuant to the child support guidelines.
A trial court's child support determination is reviewed under the abuse of discretion standard. See Canakaris v. Canakaris, 832 So. 2d 1197, 1203 (Fla. 1980). A trial court's discretion concerning child support is subject to the statutory guidelines set forth in section 61.30, Florida Statutes.
Here, the trial court did not abuse its discretion in denying Dr. Maal reimbursement for the alleged overpayments. "Child support obligations are `vested rights of the payee and vested obligations of the payor which are not subject to retroactive modification.'" Waldman v. Waldman, 612 So. 2d 703, 704 (Fla. 3d DCA 1993) (quoting Onley v. Onley, 540 So. 2d 880 (Fla. 3d DCA 1989)). Dr. Maal entered into a stipulated agreement and voluntarily agreed to pay $5,000 per month in child support. He is not entitled to reimbursement for the alleged overpayment because such payments were made voluntarily, and there is no evidence that the payments were considered to be a loan. See Martinez v. Martinez, 383 So. 2d 1153, 1155 (Fla. 3d DCA 1980).
Conclusion
Based on the foregoing, we reverse the trial court's determination that a valid marital relationship did not exist, and remand for proceedings to determine whether Hall entered the purported marriage in good faith and in substantial compliance with Chapter 741, Florida Statutes. We affirm the trial court's determination that Dr. Maal is not entitled to a refund of his alleged overpayment of child support.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
KAHN, J., CONCURS; ROBERTS, J., DISSENTING IN PART WITH OPINION.
I agree with regard to the child support but respectfully disagree with regard to the validity of the marriage. In finding that a valid marriage exists between the parties, the majority creates a new species of common law marriage in violation of section 741.211, Florida Statutes (2002).
Kimberly Hall and Roberto Maal were engaged to be married on March 2, 2002, at Old Christ Church in Pensacola. Leading up to their wedding date, the couple went through many of the familiar activities of those who intend to marry. They arranged for the church, engaged a minister, sent out invitations, and arranged for flowers and a photographer. They attended at least two wedding showers. And, as some couples do, they started to work out a pre-nuptial agreement.
The week before the marriage, the couple was scheduled to go to the county clerk of court's office to get a marriage license. However, on that day, Dr. Maal called Ms. Hall at work and told her that, because they had not agreed on the pre-nuptial agreement, they were not going to be able to get a marriage license. On March 2, 2002, the couple participated in a wedding ceremony without ever having applied for a marriage license.
Since 1967, when the Florida Legislature abolished common law marriage, there has been only one method of producing a legally cognizable marriage in Florida. See generally §§ 741.01—.212, Fla. Stat. (2002). Persons desiring to be married are required to apply for a marriage license which can be issued by a county court judge or the clerk of the circuit court. § 741.01, Fla. Stat. (2002). After issuance, a license is valid for 60 days within which time the marriage must be solemnized. § 741.041, Fla. Stat. (2002). Marriage may be solemnized by ordained clergy, judges, clerks of court, or notaries public. § 741.07, Fla. Stat. (2002).
Section 741.08, Florida Statutes (2002), provides:
Marriage not to be solemnized without a license. — Before any of the persons named in s. 741.07 shall solemnize any marriage, he or she shall require of the parties a marriage license issued according to the requirements of s. 741.01, and within 10 days after solemnizing the marriage he or she shall make a certificate thereof on the marriage license, and shall transmit the same to the office of the county court judge or clerk of the circuit court from which it issued.
There are two cases which examine this statute. The first case, In re: Estate of Litzky, 296 So. 2d 638 (Fla. 3d DCA 1974), is indistinguishable from the case before us. Rose Litzky, a/k/a Rose Zyontz, married Isaac Litzky in an Orthodox Jewish ceremony officiated by an Orthodox Rabbi and were issued a "Ksuba," a Hebrew marriage certificate by the Rabbi. Mr. Litzky died five months later and Rose Litzky filed a notice of election to take dower. The court ruled that the parties were never legally married stating:
We are in accord with the able probate judge's opinion that the law of Florida now provides for only one kind of marriage, one which is entered into by the parties in good faith and in substantial compliance with Chapter 741.
The court referenced part of section 741.211, Florida Statutes, which eliminates common law marriage and states, "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 substantial compliance with this chapter." Id. at 639 (emphasis added).
In the second case, Metropolitan Dade County v. Shelton, 375 So. 2d 32 (Fla. 4th DCA 1979), the court found a valid marriage where chapter 741 was not strictly followed. In Shelton, a couple who sought to be married applied for a license on Wednesday, July 6, 1977. However, because a three-day waiting period applied, the license could not be issued until the following Monday. When they informed the deputy clerk of court that the ceremony was scheduled for Friday, the deputy clerk assured them that it would be legal to perform the ceremony on Friday and have the license issued the following Monday. The deputy clerk went so far as to telephone the notary to provide assurance of the validity of this procedure. The Sheltons had a marriage ceremony on Friday before the notary and other witnesses and then on Monday executed the newly issued marriage license in the office of the clerk of court with the notary and the same witnesses present. The court, while invited by Dade County to declare that ceremonial marriage without a marriage license results in a valid marriage, ruled more narrowly. In applying the "good faith and substantial compliance" test from Litzky, the court found that the parties acted in good faith in attempting to comply with the statute because "[b]oth of them intended to enter into a valid marriage and both assumed that the licensing procedure suggested by the clerk was valid." Id. at 33.
The court in Shelton could have, and I believe should have, reached the same result by holding that the parties were not in fact married on Friday when they had their marriage ceremony, but became married when they signed the license on Monday before a notary and the required witnesses. When section 741.08, Florida Statutes, speaks of solemnization, it means the act of signing the license before the appropriate official and witnesses, not any particular ceremony required by any faith or created from whole cloth by the parties.
In the case before us, the parties did not proceed in good faith. "Good faith" is defined as "an honest belief. . . . Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder on inquiry. . . . [It] describe[s] that state of mind denoting honesty of purpose . . . and, generally speaking means being faithful to one's duty or obligation." The Fla. Bar v. Jackson, 494 So. 2d 206 (Fla. 1986) (quoting BLACK'S LAW DICTIONARY 623-24 (5th ed. 1979)). Here, Ms. Hall genuinely wanted to be married, but she could not have reasonably believed she achieved that aim after engaging in a wedding ceremony in full knowledge that neither she nor Dr. Maal applied for a marriage license. A distinction needs to be made between sincerely desiring to be married and attempting in good faith to go through the steps that will result in a legally cognizable marriage.
The fact that the parties applied for and received a marriage license a year after the "wedding" demonstrates, not only that they knew that a marriage license was required, but that they both knew that the ceremony that they participated in did not result in a valid marriage.
Nor were the parties in substantial compliance with chapter 741 in their supposed marriage. Whether substantial compliance exists is a fact-based inquiry. However, in order for there to be substantial compliance there has to be some compliance which would, at a minimum, require the parties apply for and receive a license.
The majority compares the lack of a marriage license to an unrecorded deed and points out that failure to record a deed does not make invalid the transfer of land. This analogy would work if the couple actually received a license, went through a ceremony, and then failed to return the certified license to the clerk of court. The facts before us are more analogous to a situation in which the parties were in negotiation for the purchase of land and reached an agreement on a wide range of the terms of the sale but could not reach agreement on one final and material term. Therefore, no deed is executed and no sale is made.
The majority also relies on the canon of expressio unius est exclusio alterius, reasoning that the legislature has explicitly made invalid same sex and incestuous marriages and therefore did not intend to make invalid marriages that occur without the benefit of a license. The legislature has clearly provided that same sex marriages are invalid, stating that they "are not recognized for any purpose in this state." § 741.212(1), Fla. Stat. (2002). However, with regard to incestuous marriages, the statute provides that people in certain familial relationships "may not marry." § 741.211, Fla. Stat. (2002). This language prohibits officiants from solemnizing such marriages, rather than nullifying ones that have been unlawfully solemnized, much like the language of section 741.08 which the majority finds to be merely aspirational. If we follow the majority's expressio unius argument, clergy, notaries and judges may not conduct a marriage joining brothers and sisters, parents and children, uncles and nieces, and aunts and nephews. However, if they do, the marriage would be valid under the law of Florida.
To the extent that the majority is holding that a marriage ceremony without a license, coupled with living together and "acting married," results in a valid marriage, it is recreating a species of common law marriage in violation of section 741.211. If the majority holds that Ms. Hall entered into a technically defective marriage "in good faith and in substantial compliance" with chapter 741, I assert that the record demonstrates otherwise.
I would affirm.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED