Could a Florida minor get a marriage license, and would the Attorney General advise a private person about it?

Plain-English summary

A Brandon resident who was under 18 and planning to marry forwarded a letter she had received from U.S. Citizenship and Immigration Services and asked the Attorney General's Office for help. Assistant Attorney General Joslyn Wilson replied that the office could not assist. Section 16.01 sets the powers and duties of the Attorney General and authorizes the office to give legal advice to certain public officials about their official duties, which "precludes this office from providing legal opinions or advice to private individuals."

The letter still tried to be useful by quoting the marriage statutes as they stood in 2009. Section 741.04(1) generally required both parties to a marriage to be over 18 (and, as the statute then read, that one party be male and the other female), with an exception cross-referenced to section 741.0405. Section 741.0405 then spelled out when a clerk or county court judge could issue a license to someone under 18: a 16- or 17-year-old needed written, notarized parental or guardian consent (waived if both parents were deceased or the minor had been married before); a judge had discretion to license under-18 applicants who swore they were the parents of a child, or, on a physician's written verification of pregnancy, the expectant parents; and no license could issue to anyone under 16. The office referred her to The Florida Bar's Lawyer Referral Service for private legal help.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The dividing line in this letter is between the Attorney General's official role and private legal advice. Section 16.01 confines the office to advising designated public officials on their official duties, so a private person seeking guidance about her own marriage was outside what the office could answer. That is why the substance came as an informal courtesy rather than a formal opinion.

On the merits the letter summarized two statutes. Section 741.04(1) set the baseline: no license unless both parties were over 18, with an affidavit of the parties' true ages and identification numbers, except as provided in section 741.0405. Section 741.0405 supplied the under-18 exceptions in effect at the time: parental or guardian consent for applicants at least 16, judicial discretion for applicants who were already parents of a child or who established a pregnancy by a physician's written statement, and an absolute floor at 16. Florida's marriage-age framework has since been amended, which is why this page should be read as a snapshot of the 2009 statutes rather than current law.

Common questions

Q: Why couldn't the Attorney General help her?
A: Section 16.01 limits the office to advising certain public officials about their official duties. The office read that as barring it from giving legal opinions or advice to private individuals, so it declined and referred her to The Florida Bar's referral service.

Q: What was Florida's general marriage-age rule in 2009?
A: Under section 741.04(1), a clerk or county court judge could not issue a marriage license unless both parties were over 18, subject to the exceptions in section 741.0405.

Q: When could a minor get a license under the 2009 statute?
A: Section 741.0405 allowed it for applicants at least 16 with notarized parental or guardian consent, for under-18 applicants who swore they were the parents of a child, or, on a physician's verification of pregnancy, for expectant parents. No license could issue under age 16.

Citations and references

Statutes:

• § 16.01, Fla. Stat. (powers and duties of the Attorney General)
• § 741.04(1), Fla. Stat. (marriage license requirements)
• § 741.0405, Fla. Stat. (marriage licenses for persons under 18)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/marriage-minors
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8224

Original opinion text

Ms. Susan Salameh Tohaimer

1433 Birchstone Avenue

Brandon, Florida 33511

Dear Ms. Tohaimer:

The Florida Attorney General's Office has received a copy of the letter sent to you by the United States Department of Homeland Security, United States Citizenship and Immigration Services. According to the letter, you intend to marry and currently are a resident of the State of Florida. It appears, however, that you are under the age of 18.

Unfortunately, after reviewing this correspondence, I must inform you that this is not a matter in which the Attorney General's Office would be able to assist you. Section 16.01, Florida Statutes, sets forth the powers and duties of this office. This provision of law authorizes the Attorney General to provide legal advice to certain public officials in the performance of their official duties under state law. This precludes this office from providing legal opinions or advice to private individuals.

In an effort to be of assistance, I would generally note that section 741.04 (1), Florida Statutes, provides in part that:

"No county court judge or clerk of the circuit court in this state shall issue a license for the marriage of any person unless there shall be first presented and filed with him or her an affidavit in writing, signed by both parties to the marriage, providing the social security numbers or any other available identification numbers of each party, made and subscribed before some person authorized by law to administer an oath, reciting the true and correct ages of such parties; unless both such parties shall be over the age of 18 years, except as provided in s. 741.0405; and unless one party is a male and the other party is a female. . . ." (e.s.)

Thus, Florida generally requires that parties to a marriage contract be 18 years old, but recognizes certain circumstances when a marriage license may be issued to persons under the age of 18. Section 741.0405, Florida Statutes, which sets forth those circumstances when a marriage license may be issued to persons under 18 years, provides:

"(1) If either of the parties shall be under the age of 18 years but at least 16 years of age, the county court judge or clerk of the circuit court shall issue a license for the marriage of such party only if there is first presented and filed with him or her the written consent of the parents or guardian of such minor to such marriage, acknowledged before some officer authorized by law to take acknowledgments and administer oaths. However, the license shall be issued without parental consent when both parents of such minor are deceased at the time of making application or when such minor has been married previously.

(2) The county court judge of any county in the state may, in the exercise of his or her discretion, issue a license to marry to any male or female under the age of 18 years, upon application of both parties sworn under oath that they are the parents of a child.

(3) When the fact of pregnancy is verified by the written statement of a licensed physician, the county court judge of any county in the state may, in his or her discretion, issue a license to marry:

(a) To any male or female under the age of 18 years upon application of both parties sworn under oath that they are the expectant parents of a child; or

(b) To any female under the age of 18 years and male over the age of 18 years upon the female's application sworn under oath that she is an expectant parent.

(4) No license to marry shall be granted to any person under the age of 16 years, with or without the consent of the parents, except as provided in subsections (2) and (3)."

You may view the Florida Statutes online at: http://www.flsenate.gov/Statutes/.

You may wish to consult a private attorney for any legal assistance you may need. The Florida Bar offers a Lawyer Referral Service which you may contact toll-free at (800) 342-8060. The address is 651 East Jefferson Street, Tallahassee, Florida 32399-2300. The Bar's website is: http://www.floridabar.org.

Please understand that the duties of this office are prescribed by law. Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh