Cecily Zamora
Common-law marriage is a legally recognized marriage in which the parties did not obtain a marriage license. In the past, Georgia recognized common-law marriages that were established before January 1, 1997. After this date, common-law marriage can no longer be created in the state of Georgia. However, Georgia still recognizes common-law marriages that were established in the state before 1997 or if the couple entered a common-law marriage in another state and then moved to Georgia.
| Characteristics | Values |
|---|---|
| Common law marriage recognition | Common law marriages formed before 1st January 1997 are recognised. Common law marriages formed after this date are not recognised. |
| Common law marriage formation | Common law marriages can no longer be formed in Georgia. |
| Common law marriage requirements | Before 1997, requirements included cohabitation, the intention to get married, and referring to each other as 'husband' and 'wife'. |
| Divorce | Common-law marriages can make divorce more complicated due to the lack of a marriage license or recorded proof of marriage. |
| Domestic partnerships | Georgia law allows some domestic partnerships, primarily for same-sex couples. |
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What You'll Learn
Common-law marriages in Georgia before 1997
In the state of Georgia, common-law marriages were recognised before 1st January 1997. After this date, Georgia discontinued common-law marriages by statute.
Prior to 1997, there were four criteria that had to be met for a couple to be considered legally married under common law. Firstly, the couple had to be heterosexual (same-sex marriage was not legal in Georgia at that time). Secondly, they had to cohabit for a significant period. Thirdly, they had to refer to each other as 'wife' and 'husband' in public. Finally, there had to be an intention to get married at some point.
Even if a couple meets these criteria, they may not be considered legally married under common law. For example, if the couple has not reached the age of majority or is not mentally able to contract, they cannot be considered married.
If a couple was in a common-law marriage in Georgia before 1st January 1997 and wants to move out of the state, their rights will be determined by the marriage laws of the new state. To prove their marriage was valid in Georgia before the cutoff date, they will need to show that: all parties were of legal age and mentally able to contract, both parties agreed to hold themselves out as married, the marriage was consummated according to the law, and the marriage was established before 1st January 1997.
It is important to note that ending a common-law marriage is not as simple as establishing one. In the past, parties could simply part ways, but today, the only way to sever a common-law marriage in Georgia is through a divorce. This can be more complicated than a traditional divorce because the couple does not have a marriage license or other recorded proof of their marriage.
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Georgia's recognition of out-of-state common-law marriages
Georgia does not recognise common-law marriages that were formed on or after 1 January 1997. However, it does recognise common-law marriages that were established before that date.
If a couple has a valid common-law marriage in another state and then moves to Georgia, their marriage will be recognised by the state. This is because Georgia must recognise marriages that were legally created in another state, even if Georgia itself would not allow such a marriage to be formed within its borders.
Georgia is not a common-law state, meaning that a common-law marriage cannot be created in this state. Couples who choose to live together but not marry can use a contract to protect some of their rights. They can establish which property is joint and which is separate, and how they will divide joint property if they break up. However, these joint property agreements must be drafted carefully, or the courts will not enforce them.
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Divorce in a common-law marriage
In the United States, common-law marriages are only recognized in a handful of states. These include Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. New Hampshire recognizes common-law marriages but only for inheritance issues.
Since January 1, 1997, Georgia has not allowed the creation of new common-law marriages. However, any common-law marriages formed before this date are still recognized. If a couple with a valid common-law marriage in another state moves to Georgia, their marriage will be recognized, and they will have to go through the same legal divorce process as couples with a conventional marriage.
Divorcing in a common-law marriage can be more complicated than a conventional marriage, as the couple has to prove they were married. This is often done through evidence of cohabitation, shared finances, or public acknowledgment of the relationship. Common-law marriages do not have a paper trail, so it can be difficult to prove that a couple is married under common law. This is a necessary step to getting divorced.
In some states, couples who live together for a certain period can qualify as married under common law. This typically involves cohabitation for a significant period and acting as spouses would, such as filing joint tax returns, assuming the other's last name, presenting themselves as married, or having children together.
It is important to consult an attorney to understand the specific requirements and process for divorce in a common-law marriage, especially in states that do not recognize such marriages.
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Common-law marriage requirements
Before 1 January 1997, there were four criteria that had to be met to be considered a legal common-law marriage in Georgia:
- The couple had to be heterosexual, as same-sex marriage was not legal in Georgia at the time.
- The couple had to cohabit for a significant period.
- Both parties must have had the intention to get married at some point.
- There must have been a contract between the two parties.
Additionally, both parties must have represented themselves as husband and wife to others and lived together as if they were married.
After 1 January 1997, it is no longer possible to establish a common-law marriage in Georgia. However, Georgia will recognise a common-law marriage if it was validly established in another state before the couple moved to Georgia.
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Parental rights in common-law marriages
In the context of common-law marriage, spouses have the same inheritance rights as if they were formally married. If a couple meets the Social Security Administration's (SSA) requirements for a common-law marriage, they may qualify for various federal benefits, including spousal retirement, survivor benefits, and disability benefits.
Common-law marriage is not recognized in Georgia for relationships formed on or after January 1, 1997. However, the state recognizes common-law marriages established before this date and those legally created in other states.
In Georgia, since common-law marriages are not recognized for relationships formed after 1997, parental rights associated with common-law marriages may not be applicable. However, for relationships established before 1997 or recognized in other states, it is advisable to consult with a local attorney to understand the specific rights and protections afforded to parents in a common-law marriage.
It is worth noting that, in general, matters related to child custody and support can become complex in the context of common-law marriages, especially during separation or divorce. Seeking legal advice from a family law professional is crucial to understanding one's rights and obligations as a parent in a common-law marriage, regardless of the state or country of residence.
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Frequently asked questions
No, common-law marriages cannot be formed in Georgia since January 1, 1997.
Yes, common-law marriages formed before January 1, 1997, are recognized in Georgia.
Yes, Georgia recognizes common-law marriages formed outside the state.
The couple must be able to contract, there must be an actual contract, and there must be consummation according to law.
