Is Georgia a State That Recognizes Common Law Marriages?
Georgia reached a point, in 1997, where no new common law marriages would be created. This was specifically due to the concern that there really are not many relationships where it can be determined that the parties intended to establish a marriage. Typically, people are not making a conscious decision to use the common law to be married as opposed to going through the process of getting a marriage certificate.
The issue in Georgia now has to do with the possibility of a common law marriage possessing the same rights as a ceremonial marriage for the purposes of obtaining an equitable division of property. If you were married before 1997, you could still have a common law marriage that is considered valid under Georgia law . The problem for the spouse who wants to claim an equitable division of the marital assets under the theory of common law marriage is that you really have to have clear and convincing evidence that you and your partner were able to form a valid common law marriage.
This means, pursuant to the law in Georgia, that if you were married after 1997, in order to prove and establish a common law marriage, be prepared to present clear and convincing evidence. If you are able to prove a common law marriage, you would then be treated as parties to a marriage that was considered validly entered into in Georgia.
Bear in mind that some other states do recognize a common law marriage, and those marriages may be recognized in Georgia if the following factors have been met:
If you can show those three things, the common law marriage entered into in another state can be recognized in Georgia, and entitle you to the same rights as any other marriage validly entered into in Georgia.
Common Law Marriage History in Georgia
Common law effectively came to Georgia in 1777 and was repealed in 1879. It had to do with an agreement between a man and a woman to be husband and wife and an intention to live together as husband and wife. Very few restrictions were put in place by the legislature and no court cases were decided on common law grounds.
In 1879, the legislature prohibited common law marriage and required that all couples going forward be married traditional marriage licenses and ceremonies. Since then, common law is not an option for Georgia couples; however, under certain circumstances, a common law marriage can be validated in Georgia if that couple traveled to a common law state to get married and came to Georgia to return after the marriage. This is very rare and is only used in rare cases, such as someone stationed overseas with the military who elects to go to a common law jurisdiction (like Kansas) to get married with a view to returning to Georgia to live with a spouse and children.
To be valid, a common law marriage requires the following: consent of the parties; a present tense contract to be married; cohabitation; and reputation as married. While all of these elements have to be present, it is not always clear that they were present when the parties are separated or a divorce case is filed.
For example, can a court give full faith and credit to a foreign divorce when there is no evidence that common law marriage existed? If the couple was legally married under the laws of a common law state, does the subsequent move to Georgia erase that marriage? Does it make it so that Georgia recognizes no marriage? What if a common law couple relocates to Georgia and gets remarried (shortly) after arriving? Does that eliminate the prior common law marriage? When the property is in one spouse’s name, should the one who was not on title be awarded half without proving contribution? Can the court review premarital or other premarital contracts to determine what property ownership was intended?
These cases often turn on the issue of the intent. In the absence of any specific written or oral agreement, the courts look at the controlling intent of the parties. In other words, what did this couple intend in this relationship? What were the actions of the parties after the agreement was made that would inform a court of this intent?
What you need to get married in Georgia
The current legal requirements for formal marriage in Georgia include each party having the requisite capacity to marry and satisfying the following basic procedural requirements:
- Licensing – The parties must obtain a marriage license in the county in which the marriage will take place, otherwise they will not be legally recognized as married. The marriage license must be purchased at least 6 months after a final decree has been entered in a prior divorce case (Code of Georgia Annotated § 19-3-31(b)).
- Waiting period – A couple is not allowed to get married the same day that the marriage license was issued; they must wait 24 hours before doing so (Code of Georgia Annotated § 19-3-30(a)). This does not apply if the couple is marrying within 72 hours after the issuance of the marriage license, but only if they can show cause for the marriage to be performed sooner. Demonstrating an emergency such as a terminal illness, for example, may suffice (Code of Georgia Annotated § 19-3-30(b)).
- Significant other documentation – Parties applying for a marriage license must show one of the following forms of identification: a passport, a Georgia driver’s license or identification. If they do not possess a Georgia driver’s license or ID, both parties must provide proper identification that includes their social security numbers. In any case, the parties must their birthdates (Code of Georgia Annotated § 19-3-30(a)(2)).
Exceptions to the Rule: Does Georgia recognize common law marriages from other states?
Though Georgia does not recognize common law marriage, there are exceptions. One exception to nonrecognition involves the 1997 amendment of O.C.G.A. § 19-3-2.1 regarding claims for inheritance of a decedent who died between January 1, 1997 and December 31, 1998. Under this law, if a decedent dies without a will and leaves no surviving parent but leaves a child or grandchildren, a spouse legally married to the decedent would now be entitled to a one-half undivided interest in the estate of the decedent if that spouse had lived with the decedent in Georgia for a period in which the relationship could have been considered a valid marriage at the time it began under Georgia law. (Under Ga. Const. Art. VI, Sec. II, Para. VII (a) "Georgia laws shall be from and after their passage by the General Assembly and their approval by the Governor be the ordinary laws of the state until repealed by Act of the General Assembly. . . ." This means that, because there are no common law marriages in Georgia, a common law marriage in Georgia prior to 1997 is invalid even if Georgia law allowed such a relationship at the time it was entered into. A similar amendment occurred regarding law enacted before 1990.) A second exception occurred when the Georgia legislature acted to preserve common law marriages entered into before the statutes abolishing common law marriages were adopted. O.C.G.A. § 19-3-2.1 (c) states in part, "Nothing in subsection (a) of this Code section shall be construed to prohibit the recognition of any common law marriage entered into prior to January 1, 1997. If the courts of this state have vested full title and interest in real estate to a common law spouse prior to January 1, 1997, the common law marriage shall be presumed to be valid." The courts also recognize a third exception in that a relationship validly entered into in another state is considered valid in Georgia. This is based on the "full faith and credit clause" of the U . S. Constitution. (U.S. Const. art. IV, § 1.) With regard to a common law marriage, this requires some question of "vital statistics" to exist to justify recognition of an out of state marital relationship. Vital statistics are defined in O.C.G.A. § 19-3-1.1 as "[a]ny certificate, form, or other document prepared primarily for the purposes of registering, filing, recording, or gathering vital statistics information." A common law marriage entered into in another state is considered a "vital statistic registration." (O.C.G.A. § 19-3-1.1 (4).) Thus, the issue may turn on whether a common law marriage can result in some question of vital statistics recorded in Georgia. The cases below provide some help in clarifying this issue. A 1992 Georgia Supreme Court case, State Board of Pardons & Parole v. Interstate Commission For Adult Offender Supervision, allowed for an exception to the statutory recognition of common law marriage in Georgia in that the state which granted the common law marriage also provides for vital statistic registration. Other cases since have distinguished the State Board of Pardons & Parole v. Interstate Commission For Adult Offender Supervision case to allow for an exception to nonrecognition of common law marriages when the state involved either requires a vital statistic or permits registration, filing or recording of a common law relationship. In contrast to the above cases, a Georgia Court of Appeals in Laney v. Kahala Associates, Ltd., held that a common law marriage contract, entered into without Georgia or Hawaii as the home state, is true contract if the parties intend to be immediately bound, even if not intending such marriage to be legally enforceable. In addition, the court in Laney allowed for weight to be given to the fact that the parties lived together in Georgia as husband and wife, were recognized as such by friends and business associates, and intended to be legally bound upon leaving Georgia.
How does this affect couples and families?
In the context of Georgia’s non-recognition of common law marriage, there are several implications for couples and families. One key aspect to consider is the nature of their rights in the eyes of the law. For Georgia couples living as husband and wife without an official marriage license, the lack of legal recognition means they are excluded from certain spousal rights. These include access to health insurance benefits, the ability to make medical decisions, and property rights that usually come with legal marriage. In essence, such couples are treated as single individuals under Georgia law, which can create significant challenges in times of need.
Inheritance is another important consideration for unmarried partners. Since there is no legal marriage, spouses are not necessarily entitled to one another’s estate upon death. The distribution of assets and belongings follows the intestate laws of Georgia, which prioritize legal relatives (such as children, grandchildren, and parents) over common-law spouses. A surviving partner may find themselves with little to no legal claim to their partner’s estate, even if they lived as a marital unit at the time of their partner’s passing.
Child custody and parenting time are also areas impacted by the absence of a formal marriage. In Georgia, paternity must be established either voluntarily or through a court order for a father to gain rights over a child. Unmarried parents may face hurdles when seeking legal custody or visitation with their child. These procedures can be complicated further if the couple decides to separate after years of cohabitating, treating each other like spouses.
For couples who have been living together for an extended period, Georgia law provides no mechanism for divorce, division of property, or financial support. Unmarried couples rely on private agreements instead of the structured processes outlined by the divorce code. As a result, issues such as property division and spousal support (or palimony) will likely be subject to negotiations or contracts between the parties.
Ultimately, while Georgia does not recognize common law marriage, couples may wish to consider entering into cohabitation agreements or domestic partnerships. These arrangements require formalization by contract, enabling couples to define their responsibilities and rights. It is crucial for unmarried partners to be aware of these limitations and complexities, so they can plan accordingly for their future together.
Legal Support and Resources
If you are currently in a relationship and want to understand the legal status of your partnership, or if you are experiencing a problem with your common law marriage, seeking qualified counsel is crucial. An experienced family law attorney can help you understand the options that apply to your situation and help you determine the best course of action. Regardless of the exact circumstances of your marital situation , addressing it as soon as possible could save you significant headaches and expense in the future. The Georgia Division of Aging Services provides information on common law marriage and divorce.
