No common law marriage can be entered into in Georgia after January 1, 1997, but common law marriages entered into prior to that date will be recognized.
To constitute a valid marriage in the State of Georgia, there must be parties able to contract, an actual contract, and consummation according to law.
(1) Parties able to contract.
To be able to contract marriage, the parties must meet the following qualifications:
(a) Sound mind;
(b) Age of consent: The male must be at least 18 years of age and the female must be at least 18 years of age. A child aged 16 or 17 must have parental consent.
(c) Proper relationship: A party may not be related to the prospective spouse within the prohibited degrees;
(d) Previous marriage dissolved: Neither party can be a party to a previous undissolved marriage at the time of contracting a new marriage.
(2) An actual contract.
To create a contract of marriage, the parties' consent must be voluntary without fraud practiced upon either.Drunkenness at the time of the marriage, if brought about by art or contrivance to induce consent, is specified as a means of such fraud. Duress of the type that prevents voluntary consent is sufficient to invalidate a marriage, but this does not include a decision to marry simply to avoid prosecution for a crime, for example, seduction.Although the general law of contracts indicates otherwise, it has been held that a marriage contract is valid even though made in a spirit of fun and jest.A marriage contract, however, is not required to be in writing.
Once evidence of a marriage contract is shown, it would be relevant to admit evidence to show whether the contract actually existed by showing 1) that the parties acted in a manner consistent with such an agreement and 2) that the community believed such an agreement existed.
(3) Consummation according to law.
This requirement varies depending on whether there is a ceremonial or common law marriage. For a ceremonial or formal marriage, consummation is accomplished either (a) by obtaining a license to marry and the performance of a ceremony by a minister or other person authorized to join persons in matrimony,or (b) by an actual agreement in words of present tense to be man and wife with the intention of assuming a marital relationship. Sexual intercourse is not essential to the consummation of a valid ceremonial marriage.
A common law marriage is created by the three mentioned essentials of marriage but, in addition, must be consummated by cohabitation. Cohabitation used in this sense implies marital intercourse.
As a general rule, each of the above qualifications is an essential element of a valid marriage; if any one of these elements, i.e., parties able to contract, an actual contract, and consummation according to law, is missing at the time of an attempted matrimonial union, the marriage is invalid. These requirements must be satisfied simultaneously in order for a valid marriage to exist.
The party asserting a common law marriage must prove its existence by a preponderance of the evidence,[and this is a question for the trier of fact.
On appeal, if there is any evidence to support the finding of a common law marriage or no common law marriage, the decision must be upheld.
Although the Code also requires a license to marry, premarital medical examinations for disease, and parental consent for a party under the age of majority, a failure to comply with such formalities does not invalidate the marriage in the absence of an express statutory provision rendering the marriage void.
A marriage invalid in its inception can, after all impediments have been removed, be validated by the subsequent voluntary consent to cohabit as husband and wife. This result is not based on the theory that the attempted but invalid marriage is ratified nunc pro tunc, but rather that a new marriage is contracted upon common law principles after the removal of the impediment. For example, if either or both parties are under the age of marital consent at the time of the purported marriage but after reaching the requisite age continue their marital cohabitation, the marriage becomes valid without further formality.The same reasoning applies to marriages impeded by prior undissolved marriages but later dissolved by death or divorce. Also, marriages invalid for reasons of fraud, duress, or nonage of the parties are validated ipso facto if a child is born or to be born of the union.
Under certain circumstances, the fact that the parties planned at some point in the future to secure a license and formalize their union with a ceremonial marriage does not negate the existence of a common law marriage.
The decision of the trial court as to the fact question of the existence vel non of a common law marriage will not be disturbed on appeal if there is any evidence to support its findings.
Where the existence of a common law marriage is disputed and the trial court refuses to dismiss the complaint, the submission of evidence and argument may convert the proceeding to one for summary judgment.
In a case where the parties have been divorced, the doctrine of continuity would apply, and the divorcee would have the burden of proving a subsequent common law marriage.
Contact a Paulding County family law attorney immediately if facing divorce or a modification.
