Atlanta Divorce Attorney Blog

In Georgia, to be able to enter a valid marriage, a person must “have no living spouse of a previous unresolved marriage.” OCGA §19-3-2(3). Further, “[t]he dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.” Id. Any marriage that violates this bigamy provision is void in Georgia. OCGA §19-3-5. A Cobb County woman recently found herself on the wrong side of this law. Woman, 48, accused of bigamy, theft, by Alexis Stevens, The Atlanta Journal-Constitution, October 10, 2011. The woman married her first husband in Gwinnett County on January 16, 2004 and married her second husband on April 19, 2007 in Cobb County. Id. However, she was not divorced from her first husband until April 7, 2008. Id. Apparently, when she applied for a marriage license with her second husband, “she allegedly stated that she had been married time and that she had divorce in 2001.” Id. Interestingly, this woman’s bigamous acts were not discovered until she allegedly tried to steal a truck.

In addition to her second marriage being void under Georgia law, this woman also faces a criminal charge of bigamy. According to the criminal code, “[a] person commits the offense of bigamy when he, being married and knowing that his lawful spouse is living, marries another person or carries on a bigamous cohabitation with another person.” OCGA §16-6-20(a). If this woman is convicted of the offense of bigamy, she “shall be punished by imprisonment for not less than one nor more than ten years.” OCGA §16-6-20(c).

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.

In Georgia, there are certain degrees of relationship within which marriage is prohibited. Specifically, marriage is prohibited between the following relationships: (1) Father and daughter or stepdaughter; (2) Mother and son or stepson; (3) Brother and sister of the whole blood or the half blood; (4) Grandparent or grandchild; (5) Aunt and nephew; and (6) Uncle and niece. OCGA §19-3-3(a). These marriages are forbidden whether the relation is by blood or marriage. Id. In addition to these marriages being “void from their inception,” a person who knowingly enters a marriage prohibited by this law “shall be punished by imprisonment for not less than one nor more than three years.” OCGA §19-3-3(a) and (b).

In addition, if there is another state that allows a marriage within the degrees prohibited in Georgia, such a marriage performed there will not be recognized in this state. The law clearly states that “[p]arties residing in this state may not evade any of the laws of this state as to marriage by going into another state for the solemnization of the marriage ceremony.” OCGA §19-3-43. Thus, the parties will not be entitled to any of the benefits of marriage in Georgia, including the ability to obtain a divorce.

In Georgia, same sex marriage is prohibited. Specifically, Georgia law states that it is “the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.” OCGA §19-3-3.1(a). In addition, even if a same sex couple marries in a state that recognizes same sex marriage, such as New York, the marriage shall be void in Georgia. Thus, the parties will not be recognized as spouses in Georgia and will not be “entitled to the benefits of marriage,” which include the ability to obtain a divorce. OCGA §19-3-3.1(b). Georgia law further states that “the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.” Id. Georgia courts, therefore, will not get involved at all and, if a legal issue arises incident to the same sex relationship, it must be addressed in a state that recognizes same sex marriage, though the parties will have to overcome any jurisdictional hurdles in that state.

Before a person can get divorced, they must have a valid marriage. In Georgia, to constitute a valid marriage, there must be: (1) Parties able to contract; (2) An actual contract; and (3) Consummation according to law. OCGA §19-3-1. To be able to contract marriage, a person must: (1) Be of sound mind; (2) Be at least 18 years of age, or be 16 or 17 years of age with parental consent; (3) Have no living spouse of a previous unresolved marriage; and (4) Not be related to the prospective spouse by blood or marriage within the prohibited degrees. OCGA §19-3-2. To have an actual contract, the parties must have “actually contracted to be man and wife in the forms and with the solemnities required by law.” Pitts v. State, 147 Ga. 801, 803 (1918).

If any of these prerequisites is missing, the marriage is not valid in Georgia and the parties cannot be awarded equitable distribution of their assets or alimony. If you are unsure whether you have a valid marriage and are, therefore, able to obtain a divorce, contact a Georgia divorce or family law attorney to assist you.