Common Law Marriage Explained
Common law marriage refers to a marriage between two individuals who are cohabitating and acting together as a married couple, but who have not gone through the formal process of obtaining a marriage license or having a wedding ceremony. Georgia passed the Marriage by Cohabitation Act in 1977 which essentially abolished common law marriage in our state after January 1st of that year. This means that anyone who cohabitated and held themselves out to be husband and wife prior to this date entered into a common law marriage that still exists today. If you think you might have been in a common law marriage as of January 1 , 1977, or prior, it is imperative that you contact an attorney right away to determine the status of your marriage and division of your assets. Any new common law marriages have been abolished in Georgia since 1977.
Is Common Law Marriage Recognized in the State of Georgia?
Georgia is generally considered to be an "anti-common law marriage" state. The last time that common law marriage was a legal status in Georgia was between 1977 and 1980. As a general rule, common law marriages contracted in Georgia prior to 1977 are considered to be legally valid; but those contracted thereafter are not, under Georgia law, capable of being legally recognized in Georgia.
In 1977 a Georgia statute was adopted that forbade the adoption of any law recognizing common law marriage as a valid status after July 1, 1977 [O.C.G.A.§19-3-1(a)]. However, the legal status of such a union could be conferred through a judicial decree if it was established pre-July 1, 1977 that a common law marriage had been legally constituted in another jurisdiction.
In 1980, the Legislature included repeal language within the anti-common law marriage codification, so as to have the anti-common law marriage statute rescinded effective July 1, 1980. (See 1980 Ga. Laws, p. 2474.) By its terms, the repealer language would not interfere with the validity of any common law marriage that had been lawfully constituted prior to July 1, 1977. Thus the Legislature left the legal status of such a pre-1977 common law marriage intact.
However, in 1993, the anti-common law marriage codification was repealed again, so as to be effective July 1, 1993. (See 1993 Ga. Laws, p. 1576.) In enacting this repeal, the Legislature expressed its intent to revive the validity of common law marriages "by any means and at any time prior to July 1, 1980," as well as those established in other jurisdictions prior to July 1, 1977. (See O.C.G.A.§19-3-1.1(a)).
In 98 IAC, Inc. v. Stewart [267 Ga. App. 474 (2004)], the Georgia Court of Appeals ruled that the 1980 statute preserved the validity of all common law marriages that were entered into prior to July 1, 1977. The Court of Appeals held that the re-enactment of the 1980 statute did not render the anti-common law marriage codification ineffective, because the Legislature never expressed an intent to revive the anti-common law marriage statute. The Court also ruled that the 1993 repeal of the anti-common law marriage codification was meaningless if it was not meant to permit the validity of common law marriages entered into after July 1, 1977 to be revived.
In Moore v. Moore (2007 GA App Lexis 1097), the Georgia Court of Appeals again addressed a common law marriage matter. In Moore, the Court considered the validity of a common law marriage previously entered into in Florida by two Georgia residents. The trial court found the common law marriage to be valid. On appeal, the Court of Appeals issued a ruling that is based on the peculiarities of Florida law, but the opinion could be read as eroding the validity of the anti-common law marriage statute in Georgia. While Moore recognizes Florida laws on common law marriage, it does not address anti-common law statutes of Georgia. At this time, it remains to be seen how Moore affects the overall validity of common law marriage in Georgia.
From Recognized to Unrecognized
In my prior post I raised the issue of the transition from recognized to unrecognized common law marriages based on the latest (2017) U.S. Department of Justice opinion. But what about the transition period when new common law marriages were no longer recognized in Georgia? If a couple had entered into a common law marriage—even before the DOJ opinion declaring new common law marriages invalid—could the couple then challenge or "convert" the common law marriage into a common law marriage recognized by the State? And if so, what would be the effect of such a challenge or conversion?
As an initial matter, the State has a long-standing policy that prohibits retroactive application of new laws or regulations that are more restrictive than pre-existing laws or regulations. For any new law that is strictly procedural in nature, the only effect of the new law or regulation shall be that the new law or regulation applies to any action filed after the effective date of the law or regulation. A new law that is more "substantive" in nature shall only be applied prospectively unless there is a clear, legislative intent to the contrary.
In this regard, it is important to note that the transition date for Georgia’s repudiation of new common law marriages was July 1, 1997. Therefore, new common law marriages could not be validly entered into after this date. This means that any common law marriages entered into after July 1, 1997 in Georgia are invalid and not recognized in Georgia. Based on arguments set forth by the Attorney General’s office, the Georgia courts would likely not apply the no-longer-recognized common law marriage law retroactively but prospectively to invalidate only common law marriages entered into after the effective date. Based on Georgia’s policy against retroactive laws, any subsequent challenge to newly formed common law marriage would likely be ruled as inapplicable to any common law marriage that came into being prior to July 1, 1997.
Any challenge to previously existing common law marriages would have to be based on the arguments set forth by the attorneys general for the various States. Georgia law does not permit a lawful marriage to be annulled unless there is a lawful basis for such an annulment. The argument made by the Attorney General’s office is that the marriage is void (not voidable) based on the fact that there is no legislative intent to create an action to validate an invalid common law marriage. The Georgia legislature has never expressly stated that a common law marriage entered into prior to the invalidation of common law marriage may be enforced. When the legislature ends a continuing policy with civil consequences, Georgia Courts have determined that the statute or act must contain clear, unambiguous, and unequivocal legislative intent to ground a modification of the law. In the absence of such intent, courts may not apply the modified law to matters pre-dating the effective date of the modifying law. INTENT is the operative factor.
Based on the lack of explicit legislative intent to apply the elimination of common law marriages to previously entered into common law marriages, any challenge that would seek to invalidate or "convert" pre-July 1, 1997 common law marriages would be unlikely to be successful—at least as to those same-sex or heterosexual couples who were couples prior to July 1, 1997.
Standard Requirements for Recognized Common Law Marriages
In Georgia, in order for a common law marriage to have been recognized in the past, three criteria needed to be met before the law was abolished in 1997. The couple must have entered into an agreement to be married. The couple must have cohabitated. Finally, the couple must have held themselves out as being married to others. The requirement that there be an agreement to be married is often limited to agreement that there be a future marriage. In other words, the parties did not have to each agree that they were already married but rather that they were going to get married. Cohabitation is not strictly defined and many different arrangements will satisfy it. However, it means more than a single overnight stay. The intent of the law is that the couple must live together and behave as though they were married while living together. The requirement that they hold themselves out to the public as being married requires evidence that the couple referred to themselves and to each other as husband and wife and that they told others that they were married. Having children together is not enough.
Legal Consequences of Common Law Marriage
In Georgia, all property rights, inheritance relations and other legal obligations or benefits of law attach to both parties in a common law marriage immediately upon entering into the relationship. For instance, in Curtis v. Skinner the Court held that a wife had an ownership interest by tenancy by the entirety and a right to dower in property titled in the decedent-husband’s name at his death, validating her claims as a spouse notwithstanding the absence of a legal marriage ceremony. Property acquired during a common law marriage and owned at one spouse’s death is also subject to administration for the benefit of the deceased spouse’s estate in the same way that property owned by the spouse at the time of marriage is subject to administration at divorce, unless the surviving spouse affirmatively acts to sever the marital property relationship.
Also, in Estate of Elrod, the Court found that the common law wife of the Decedent was entitled to homestead, exempt property, to intestate share in same, and to widow’s year’s support in addition to half of the personal property from the Decedent’s estate notwithstanding that there was no common law divorce between the parties.
Proving the Existence of a Common Law Marriage in Georgia
To establish a common law marriage, the burden is on the party claiming a common law marriage by a preponderance of the evidence to show:
- The parties exchanged words of present intent to be married;
- The parties currently reside in Georgia; and
- The parties hold themselves out publicly as being married.
A statutory presumption exists that the parties to an attempted marriage are not married if they have not lived together for: (1) at least 30 days after the marriage ceremony relating to this attempted marriage; or (2) at least 90 days under a purported marriage contract.
A "marriage contract" is presumed to exist 90 days after the first signing of an invalid marriage license … absence rebuttal evidence such as cohabitation , or staleness of the proceedings. And the attempted marriage is presumed voidable if the parties failed a mandatory blood test or if any other prescribed condition was not satisfied.
Notably, a recent case involving common law marriages was heard in front of the Georgia Supreme Court. In that case, the Court looked at a couple who had lived together for eight months. Despite reviewing photographs and supporting affidavits from family and friends who referred to each other as a "husband" and "wife," the Georgia Supreme Court found the evidence insufficient to prove a valid common law marriage existed since there was not enough evidence that the couple intended to be married, on a permanent basis, but only carried on a relationship indicative of a cohabiting couple.
Dissolution of Common Law Marriage
Dissolution of Common Law Marriage
When one party wishes to dissolve the marriage but the other party does not, one party has to go to court and file for a divorce. In Georgia, a divorce must be filed with the Superior Court and a husband or wife may use their common law as grounds for a divorce in Georgia if: "The marriage is irretrievably broken" O.C.G.A. § 19-5-3(a)(13) In order to file for a divorce on the grounds of common law marriage, you must have had a common law marriage and have lived in Georgia as husband and wife. If the common law marriage jurisdiction allowed the marriage, and if the parties have moved to Georgia while husband and wife, then the filing spouse has grounds for divorce. The difference between the dissolution of common law marriage and the dissolution of ceremonial marriage, is limited to the grounds to file for divorce on. Other than that, the procedures are virtually the same. The process is not difficult.
Myths and Facts About Common Law Marriage
There are a number of misconceptions surrounding common law marriage in Georgia and how the agreement is treated by the Georgia courts. The first misconception, which we’ve already addressed above, is that a common law marriage requires an express agreement that the couple intend to be married. Many people believe they are in a common law marriage because there was an express agreement between them. That is not the case. The parties need not expressly agree they intend to have a common law marriage but this shared intent can be inferred from their conduct. The conduct of each party over the years of the relationship may trigger the presumption of a common law marriage. Such conduct can include living together for a period of time, wearing a wedding ring or otherwise holding oneself out to the public as being married and identifying each other as spouses to others. Finally, each party should have the present intent to be legally married. Another misconception is that cohabitation coupled with an agreement to live together constitutes a common law marriage. Cohabitation alone is insufficient to establish a common law marriage in Georgia. Cohabitation in conjunction with the other factors outlined above can establish a common law marriage. Another fallacy is that parties who are common law married in one state are recognized as common law married in Georgia. A marriage that is valid in the state where it was entered into was typically recognized in Georgia. Absent subsequent legislation, Georgia continues to recognize common law marriages entered into before January 1, 1997.
Legal Help and Additional Reading
Those who believe they are experiencing a challenge with common law marriage in Georgia should first contact family law attorneys experienced in this area. The adoption of Georgia’s statute abolishing common law marriages is generally prospective in nature, which means that it only applies to new marriages entered into after the date of its passage. That said, there may still be implications even for marriages known to have commenced after 1997 , and it is important to seek advice from legal counsel experienced in family law to determine whether such a marriage is actually valid.
In addition, legal aid groups provide assistance to a variety of individuals in need of legal help, including those facing issues related to divorce. Legal aid organizations often provide advice, counsel and representation at no charge or at a reduced fee to those who qualify. Those in need of legal aid services can find a list of their nearest legal aid group through the website of the American Bar Association.