Florida Estate Planning Lawyer Blog
Can a Marriage be Prevented in Florida? We often get questions about whether the Fundamental Right to Marry Extends beyond Incapacity?
The state constitution of Florida offers every citizen basic fundamental rights. One of the most important of these rights is a Florida resident’s fundamental right to marry. The right to marry in Florida is strong and has grown ever stronger recently due to the U.S. Supreme Court’s holding that same-sex marriage is a right.
However, this right to marry in Florida is not without its limits. Under the current state laws, an incapacitated person cannot marry without court approval. When a person is deemed incapacitated by a court, he or she loses the ability to contract with others. As unromantic as it sounds, marriage is a contract between two people. Two people cannot get married if one of the persons to the marriage no longer has the ability to enter into a contract.
If an incapacitated person marries then the marriage may not be valid. So what is a valid marriage? According to the court in Goldman v. Dithrich, 179 So. 715 (Fla. 1938), “To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to the prevailing social mores.”
Florida Statute Section 744.3215 states that some of a person’s rights may be removed from a person due to incapacity. Of the 28 rights listed in this statute, six of the rights may be taken away and cannot be delegated to a guardian. This same law states that when a person loses the right to contract he or she also loses the right to marry without court approval.
Smith v. Smith holding that a Marriage was Void in Florida
If an incompetent person marries without court approval than the marriage is void in Florida. (Assuming the right to marry in Florida was removed in the guardianship) In this case of Smith v. Smith, Case No. 14-1436 (Fla. 4th DCA 2016), the court annulled the marriage between Glenda Smith and Alan Smith. Alan Smith had previously been judged incompetent after he suffered head trauma in an automobile accident.
Despite the court’s restriction on Alan’s right to contract and marry, Glenda and Alan decided to marry regardless. The court-appointed independent counsel to Alan and this counsel filed a proceeding to annul the marriage. The Court granted the petition filed by Alan’s counsel and annulled the marriage. Glenda appealed the court order and argued that Florida statutes do not require prior court approval.
The issue became, was the marriage voidable or void? These are two distinctions that can make a lot of difference under the law. A void marriage would be a marriage that was invalid on its face, so it legally never existed in the first place. A voidable marriage would be a marriage that can later be ratified or approved. For instance, if the marriage was voidable the court could rule the marriage was okay. However, in this case, the court held the marriage was void on its face and thus annulled it.
The Problem with Declaring the Marriage Void
The problem with declaring the marriage void is that it ignores the possibility that an incompetent person can become competent again. Many people that are deemed incompetent can experience lucid intervals where they are mentally competent. Further, many people recover from mental incapacity and may wish to ratify the contracts and accept the benefits of marriage.
However, the counterargument remains that while marriage is a fundamental right the rights of an incapacitated person need to be protected. One could dream up some scenarios where a person with a mental incapacity could be taken advantage of due to their condition. For instance, a greedy playboy could marry a rich incapacitated oil tycoon for her money and later seek out a divorce to receive a large settlement. Marriage is a deep and complicated contract for a person to enter into, and the inability of an incapacitated person to understand this should not be downplayed.
The Florida Supreme Court will soon make a final decision on this issue. In the meantime, if you want more information on how to petition a court for marriage with an incompetent person contact the Jacksonville Guardianship lawyers or Jacksonville family law attorneys at The Law Office of David M. Goldman PLLC today.