November 12, 2012

Does Georgia Recognize Common Law Marriages Consummated in Other States?

Although Georgia stopped recognizing common law marriages entered into within the state as of January 1, 1997, there is still some question as to whether Georgia Courts will recognize common law marriages legally entered into outside the State of Georgia. This is a topic of concern for individuals who are married, via the common law, and move to this state, because Georgia’s recognition, or lack thereof, could have a major impact on their rights if they ever seek a divorce.

Pursuant to O.C.G.A. § 19-3-1.1, “No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state.” Thus, no common law marriage entered into in the state of Georgia on or after January 1, 1997 will be recognized with in the state. Only marriages entered into prior to this date still enjoy recognition. But, seeing that there are still some states with in the United States that continue to recognize Common law marriages, many couples who are married by the common law may wonder: “If we move to Georgia, will our marriage be recognized?” To answer this question, a look at Georgia’s case law on the subject will be helpful.

Case law on this matter seems to point to the conclusion that Georgia will indeed recognize common law marriages entered into outside of the state, despite the abolition of common law marriage within the state. According to the Supreme Court of Georgia, “Georgia, like other states not generally recognizing common law marriages, will recognize as valid a common law marriage established under the laws of another state.” Norman v. Ault, 287 Ga. 324, 326 (2010). Although this case seems to neatly answer the question of whether Georgia will recognize an out of state common law marriage, the Georgia case law on this specific issue is sparse. Therefore, if you have questions regarding the validity of your common law marriage, or if you are currently seeking to legally terminate your common law marriage via a divorce, the highly experienced team of family law attorneys at Meriwether & Tharp, LLC would be glad to assist you.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

September 5, 2011

Common law marriage in Georgia

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.

December 4, 2008

Common Law Marriage in Georgia

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.