Atlanta Divorce Attorney Blog

Atlanta divorce attorneys are often asked about common law marriage. According to Georgia law, “no common-law marriage shall be entered into in this state on or after January 1, 1997.” OCGA §19-3-1.1. If a valid common-law marriage was entered into prior to January 1, 1997, it will continue to be recognized in Georgia. Id. There are three requirements for a valid common law marriage: the parties must be able to contract, must agree to live together as man and wife, and must consummate this agreement. Ga. Osteopathic Hosp. v. O’Neal, 198Ga. App 770, 778 (1991). In addition, “the fact of cohabitation is treated as essential, if not the main factor in establishing in this State a common-law marriage.” Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 271 (1979). If all of these requirements were met BEFORE January 1, 1997, the common-law marriage will likely be recoginzed in Georgia.

Parties to a valid common law marriage entered into prior to January 1, 1997 may obtain a divorce and ask the court to award alimony equitable distribution, and/or child support. After January 1, 1997, you must have a valid ceremonial marriage in order for the marriage to be recognized.

Common law marriage is a marriage recognized in some states even when there has been no official ceremony performed or civil contract entered into. Common law marriage was abolished in Georgia beginning on January 1, 1997 and any common law marriage entered into on or after that date is not valid O.C.G.A. §19-3-1. However, Georgia still recognizes any valid common law marriage entered into prior to January 1, 1997 and, thus, it is important to understand how a common law marriage can be established.

There are three requirements for a valid common-law marriage in Georgia: (1) the parties must be able to contract; (2) there must be an actual contract; and (3) there must be consummation according to law (O.C.G.A. §19-3-1). These same requirements are applicable to ceremonial marriages, but apply a little differently in common law marriages. To be able to contract, both parties must be of sound mind, at least 18 years old, not related within a certain degree, and have no prior unresolved marriage. An actual contract is established in a common law marriage when the parties have a mutual agreement to be husband and wife and hold themselves out to the world as husband and wife. Consummation in a common law marriage is established by the continuous cohabitation of the parties. There is no required period of time that the parties have to live together, but the longer the cohabitation, the stronger the presumption that a common law marriage exists.

All of the above elements must be proven by a preponderance of the evidence to have existed prior to January 1, 1997 in order to establish a common law marriage that will be recognized by the state of Georgia. Once a common law marriage is established, the parties to that marriage are afforded the same rights as any other married couple, including the right to get a divorce.