Common Law Marriage in Georgia

At one time, Georgia recognized a informal type of legal union known as common law marriage. That ended on Jan 1, 1997. O.C.G.A. §19-3-1. However, if you were in a relationship prior to that date, you may be common law married. A marriage in Georgia may have occurred if a man and woman cohabited and proclaimed to the public that they are husband and wife prior to that date. There is no such thing as a common law divorce; a common law marriage must be terminated by the courts like any other marriage. Georgia does recognize common law marriages from other states where this form of marriage is still legal to enter in to such as South Carolina. However, you will need an order from that state.

Common Law Marriage in South Carolina

REQUIREMENTS FOR A COMMON LAW MARRIAGE

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 Georgia 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 Georgia 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.

WHY A COMMON LAW MARRIAGE MAY BE IMPORTANT

A common law marriage can be important if the parties separate or if one of the parties dies. If you separate and you are not married, then you may not have any rights to the home or to property that has been purchased during the time that you were together. In a divorce each party is entitled to an equitable division of the martial estate. If there is no marriage, then there is no marital property. The same may be true if one party dies. A spouse has certain rights to the estate. However, if you are not a spouse, you may have no rights. It can also mean the difference between being able to collect Social Security or Military benefits. If you need assistance, contact a Georgia family law attorney to determine your rights.

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