An Introduction to Common Law Marriage
For many people, the concept of common "law" marriage gives rise to questions about their marital status. Marital status is usually legally established through contemporaneous ceremonial marriage. But in a time when cohabitation is more accepted by society, many people forego ceremonial marriage and ask whether cohabitation alone will establish a marriage.
A common law marriage exists when a couple satisfies several statutory requirements to establish marriage without any further ceremony or public declaration. Common law marriages existed in England for several centuries and were recognized in colonial America. Because Georgia was a British Colony, common law marriage came to our state along with common law courts in 1733. The Georgia Code at O.C.G.A. §19-3-1 establishes the meaning of the term "marriage" as "the legal relation into which a man and woman enter with the intention of living together as husband and wife," but establishes that no new common law marriages may be created in Georgia . To establish marital status, Georgia now requires the parties to have a valid marriage license and to participate in a marriage ceremony. Unless either of those requirements are satisfied, the parties are not legally married.
We recognize our prior decisions in Eason v. Stergiou, 249 Ga. 198 (1982) and Tancrell v. Tancrell, 263 Ga. 30 (1992) concerning the enforceability of contracts in anticipation of a marital relationship. However, as we explained in Ponder v. Ponder, 293 Ga. 455 (2013), the issue in Eason and Tancrell was whether there was a binding contract. The question before us now is not whether there is an agreement between the parties; the question is whether their specific agreement creates a common law marriage. And in Georgia, the answer is no.
The Legal Standing of Common Law Marriage in Georgia
Georgia does not recognize common law marriages. In 1997 the Georgia General Assembly abolished common law marriage in this state and declared that in order for a marriage to be valid, it had to be solemnized by a judge, minister, priest, or other recognized officiant in compliance with Georgia law. The only exceptions to this requirement are military personnel and their dependents, who may contract common law marriages in Georgia under Georgia Code 19-3-2.1.
While a common law marriage may have been valid under Georgia law prior to 1997, it is now no longer legal regardless of the time it began. Prior to 1997, common law marriages were recognized in Georgia if both parties had the capacity and intent to marry, cohabitated pursuant to that intention, and had a reputation in the community of being married. The law declared by the General Assembly in 1997 to abolish common law marriages was clarified in 2005 by the Georgia Supreme Court when it said that prior common law marriages entered into in Georgia were not affected by the abolition of common law marriage in this state. This same 2005 case also clarified the other exceptions to the sole requirement for solemnization of a valid marriage in our state. If a common law marriage between two Georgia residents began prior to January 1, 1997 and it has not been dissolved, the marriage is still valid. Common law marriages begin in this state when the minimum requirements for such marriages have been met: legal capacity to marry (age, not too closely related, mental capacity, etc.) and mutual present intent to be married. Once a common law marriage has begun, even though the parties subsequently move out of Georgia, the marriage is still valid. If the parties to a Georgia common law marriage move to another state, then the recognition given by the other state will control. If the other state recognizes common law marriage, then the Georgia common law marriage would also be recognized there. If the other state does not recognize common law marriage, then the Georgia common law marriage would not be valid in the other state. If the parties to a Georgia common law marriage relocate to another state, then the Georgia common law marriage can be terminated only in Georgia, even if the parties’ new residence state allows for termination of common law marriage.
Exceptions Affecting the Recognition of Common Law Marriage and Out-of-State Common Law Marriages
While Georgia does not recognize common law marriages, the state will recognize such legal unions as valid if they were created in states where common law marriages are permitted. Georgia Code section 19-3-1.1 reads:
"It is the policy of this state to uphold any marriage of a party who was domiciled in a jurisdiction that allowed common law marriage if that party entered into the marriage in any jurisdiction in which such marriage was a recognized form of marriage; and to recognize the validity of those marriages as provided for in this Code section, provided that such marriage was otherwise in compliance with the laws of this state."
In other words, a common law marriage formed in a state where common law marriages are valid under local law will be recognized in Georgia as long as that marriage meets the requirements of Georgia law. These requirements include:
• The legal age of consent for marriage (age 18)
• A mental state of mind known as "capacity" (the absence of any mental disease or disorder that would otherwise prevent someone from entering into a legal marriage)
• Freedom from other legal marriages (i.e. parties are not legally married to anyone else at the time of the common law marriage)
• Lack of an impediment or bar (such as being related to each other or having been divorced too recently)
• The capacity to consent to the marriage (for example, intoxication would prevent sufficient consent)
It is important to note that in most instances the common law marriage must be valid under the laws of the state in which it was formed, but the common law marriage does not necessarily have to be valid in later jurisdictions. For example, a common law marriage created in Georgia or South Carolina would be invalid in many other states, such as North Carolina.
Rights and Obligations Arising from a Recognized Common Law Marriage
Individuals from recognized common law marriages in Georgia must understand that many of the same rights, responsibilities, remedies, and obligations attached to a conventional marriage also apply to common law unions in Georgia. Georgia recognizes equitable claims for property acquired during a common law marriage as joint marital assets. After a common law divorce, such properties remain subject to equitable division just as would property in any conventional union. Most importantly, individuals in a common law marriage have the same rights to seek alimony after a divorce as do conventional couples. Children born into common law marriages have the same rights of inheritance as do children of conventional marriages. Child support and child custody issues in common law unions are handled by the Georgia Family Code in the same manner as would such issues in a heterosexual legal marriage. In other words, there is no special treatment of children whose parents were married under common law in Georgia.
Common Law Relationships, Challenges, and Legal Issues
Though lacking the formality of legally recognized marriages with accompanying protections, individuals in common law relationships can face some of the same issues and challenges that surface in all types of domestic cases. For example, if a common law couple is unable to meet their financial obligations because one partner has lost his or her job, it will be the responsibility of the other to support the first. If the individual is not able to, then she may be forced to pursue legal recourse in order to obtain financial support from her spouse.
While obtaining alimony or child support payments from a legal spouse is difficult enough , proving the existence of a common law relationship is equally, if not more, difficult. To establish paternity of a child born out of wedlock in Georgia, for instance, a potential father can request a DNA test and petition a court for legitimacy.
The situation becomes further complicated when partners in a common law union decide to separate. Because no legal marriage contract exists to divide their assets fairly, determining property division can be a difficult judicial process – and one of many reasons why legal marriage is always preferred to presenting oneself as husband and wife simply through living arrangements.
Legal Alternatives to Common Law Marriage in Georgia
Because common law marriages in Georgia are not common, it has become the norm for people who cohabitate to seek legal alternatives. This is especially true given the significance that a legal marriage has over a non-legal marriage. In many circumstances, it is worthwhile to consider entering into a different type of legally binding relationship with your partner. Like a home or a car, the law views marriage as a significant purchase that has a similar effect on your legal status even if it is not something you have purchased. So, it makes sense to treat it like a legal transaction with the help of a lawyer. These alternatives discuss some of the other options in which a couple may enjoy the benefits of their legal relationship without necessarily entering into a legal marriage.
Conclusion: Legal Considerations About Common Law in Georgia
It is important to remember that cohabiting as a married couple (living together and presenting yourselves as husband and wife) does not automatically subject you to marital rights and obligations in Georgia. As mentioned, Georgia has abolished common law marriage, and will only recognize common law marriage if it was entered into before the repeal date of January 1, 1997.
If you have cohabited in Georgia prior to January 1, 1997, or entered into an express common law agreement in another state, such as Texas, it is important to understand your rights and obligations under Georgia law . In addition to alimony considerations, issues such as the division of property, allocation of debts, and tax considerations are involved.
In this area of law, generalities are very difficult. While it is tempting to provide a general rule as a guide, the analysis required for cohabitating unmarried couples is particular to their own unique factual situation. For this reason, if you think that you qualify as common law married, it is important to consult a divorce lawyer to discuss your options.