Kara Sears
As of January 1, 1997, Georgia no longer recognizes new common-law marriages. However, the state still acknowledges common-law marriages that were established before this date. To be considered a common-law marriage in Georgia, several criteria must be met, including cohabitation, the intention to get married, and holding themselves out to be married in the public eye. If a couple meets these requirements and their common-law marriage was established before 1997, Georgia will recognize it, and they will have the same rights as any other married couple, including the right to divorce.
| Characteristics | Values |
|---|---|
| Common law marriage recognized? | No, since 1st January 1997 |
| Common law marriage recognized if formed before 1st January 1997? | Yes |
| Common law marriage recognized if formed in another state? | Yes |
| Common law marriage recognized if formed in another state after 1st January 1997? | Yes |
| Requirements for common law marriage | 1. Both parties must be able to contract and be of sound mind, at least 18 years old, not related within a certain degree, and have no prior unresolved marriages <5,15>; 2. There must be an actual contract; 3. There must be consummation according to law, i.e., cohabitation <3,5,12,15> |
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What You'll Learn
Common-law marriages in Georgia before 1997
Common-law marriages in Georgia are a thing of the past. Since January 1, 1997, Georgia has discontinued common-law marriages. Any common-law marriages formed in Georgia before this date are still recognized as legal marriages. If you believe you have a valid common-law marriage in Georgia before 1997, you should consult an attorney to ensure that it meets the necessary criteria.
A common-law marriage is a legally recognized marriage where the couple did not obtain a marriage license. To be considered a legal common-law marriage in Georgia before 1997, four criteria had to be met: the couple had to be heterosexual (as same-sex marriage was not legal in Georgia at the time), they had to cohabit for a significant period, they had to present themselves as a married couple in public, and they had to have the intention to get married.
The contract in a common-law marriage is the agreement of the parties to be husband and wife and to hold themselves out to be married publicly. There is no set length of time that the couple must live together. A common-law marriage must be ended through a formal divorce proceeding, including a formal division of property and assets, as well as decisions on child custody.
If you had a common-law marriage established in Georgia before 1997 and want to move out of the state, your rights will be determined by the marriage laws of the new state. You will need to prove that your marriage was valid in Georgia before the 1997 cutoff date. This can be done by showing that the parties were of legal age and mentally able to contract, that a contract was formed through an agreement to be considered married, that the marriage was consummated, and that it was established before January 1, 1997.
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Georgia's recognition of out-of-state common-law marriages
Georgia does not recognize common-law marriages that began on or after January 1, 1997. However, Georgia does recognize common-law marriages that were established before that date. Additionally, if a couple enters into a common-law marriage in a state that recognizes it, Georgia will acknowledge that marriage if the couple moves to the state. In other words, Georgia gives "full faith and credit" to marriages legally created in another state, even if it would not allow such a marriage to be formed within its borders.
Before 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 yet legal in the state), they had to live together, they had to cohabitate for a significant period, and they had to have the intention to get married at some point. This included presenting themselves to the world as a married couple, for example, by sharing a last name, having joint bank accounts or referring to each other as "my wife" or "my husband".
While Georgia does not have common-law marriage, the state does recognize common-law marriages that occurred in other states. Some counties and cities in Georgia offer the opportunity to register a relationship as a domestic partnership, but eligibility is sometimes limited to public employees or same-sex couples.
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The four requirements for a common-law marriage
Since January 1, 1997, Georgia has not allowed new common-law marriages to be formed. However, common-law marriages that were created before this date are still recognised. Here are the four requirements for a common-law marriage in Georgia:
- Both parties must 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 marriages.
- There must be an actual contract: The contract in a common-law marriage is the agreement of the parties to be husband and wife.
- There must be consummation according to law: Consummation refers to cohabitation, but there is no set length of time that the couple must live together.
- The marriage must have taken place before January 1, 1997: All of the above elements must be proven to have existed before this date.
It is important to note that if a couple establishes a common-law marriage in another state that recognises such marriages, Georgia will also recognise their marriage if they move to the state.
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The contract and consummation of the marriage
Since January 1, 1997, Georgia has not allowed the formation of new common-law marriages within the state. However, common-law marriages formed before this date are still recognised.
For a common-law marriage to be valid in Georgia, it must meet the following requirements:
- Both parties must be able to contract. This means that both parties must be of sound mind, at least 18 years old, not related within a certain degree, and have no prior unresolved marriages.
- There must be an actual contract. This is an agreement between the parties to be husband and wife, and they must hold themselves out to be married in the public eye. This can include sharing a last name, having joint bank accounts or referring to each other as "my wife" or "my husband".
- There must be consummation according to law. This refers to cohabitation, but there is no set length of time that the couple must live together.
It is important to note that the above requirements must be proven to have existed prior to January 1, 1997, for a common-law marriage to be recognised in Georgia.
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The legal rights of cohabiting couples
Georgia has not recognized common-law marriages since 1 January 1997. However, common-law marriages that were established before this date are still valid. Additionally, Georgia will recognize a common-law marriage that was established in another state if the couple moves to Georgia.
Cohabiting couples in Georgia do not have the same legal rights as married couples. However, there are certain steps that cohabiting couples can take to protect their rights. For example, they should ensure that they hold each other's power of attorney and can make emergency healthcare decisions for each other. They should also consider creating wills that give each other inheritance rights. When a cohabiting couple has a child, only the mother has parental rights by default. The father must take steps to legitimize the child and establish paternity and the right to custody.
If a couple has a common-law marriage, they have to go through a formal divorce proceeding if they want to end the relationship. This includes a formal division of property and assets, as well as deciding who gets custody of any children.
To have a valid common-law marriage in Georgia before 1 January 1997, couples had to meet certain criteria. Firstly, they had to be a heterosexual couple as same-sex marriage was not yet legal in Georgia. Secondly, they had to cohabit for a significant period of time. Thirdly, they had to have the intention to get married at some point. Finally, they had to present themselves to the world as a married couple, for example, by sharing a last name, having joint bank accounts, or referring to each other as "my wife" or "my husband".
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