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Common Law Marriage
As of January 1, 1997, common law marriage is no longer recognized in the state of Georgia. 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 within the state. Only common law marriages entered into prior to this date still enjoy recognition.
In order for a common law marriage to be legally recognized in the state of Georgia, four requirements must generally be met:
- The parties must be able to contract;
- There must be an actual contract; and
- There must be consummation according to law; and
- The marriage must be established prior to January 1, 1997.
O.C.G.A. §§ 19-3-1 and 19-3-1.1. As discussed in our article entitled “Marriage in Georgia,” these same requirements are applicable to ceremonial marriages. To be able to contract for marriage, both parties must be of sound mind, at least 18 years old, not related within a certain degree, and have no prior un-dissolved or still existing marriage. O.C.G.A. § 19-3-2. 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. See Wright v. Goss, 253 Ga. App. 147 (1997), Baynes v. Baynes, 219 Ga. App. 848 (1996), Ga. Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770, (1991), Brown v. Brown, 234 Ga. 300, (1975).
It is up to the party seeking to have the common law marriage recognized to prove all of the elements listed above 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.
Although common law marriage is no longer recognized in Georgia, it is still recognized in other states within the United States. Often, upon relocating to Georgia, many couples who are married by the common law wonder whether their marriage will be recognized under Georgia law. Although Georgia law on this subject is sparse, the Supreme Court of Georgia’s ruling on the issue is as follows: “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).