The state changed its position regarding common law marriage in Georgia in 1997. As a result, many people are familiar with common-law marriage, but only a few understand its legal realities.

In general, common-law marriage is a type of informal marriage that some states legally recognize, including Colorado, Iowa, Kansas, District of Columbia, Montana, Oklahoma, Rhode Island, and Texas.

This legal concept applies to couples that appear to be married but without a marriage contract or without having their union recorded by state or official registry.

This article discusses the concept of common-law marriage in general and provides information about this process in Georgia more specifically.

Does Georgia Recognize Common Law Marriage?

Before January 1, 1997, the common law in Georgia allowed marriage under its wing. Although it does not allow them anymore, the state of Georgia still recognizes the marriage of common-law couples established before 1997 and in compliance with all the requirements.

In general situations, marriage laws in Georgia demand couples to meet strict requirements to allow them to apply for a marriage license. For example, the couple would need to present residency requirements, an identification that shows proof of age, and a divorce decree if they were in previous marriages. After obtaining the marriage license, a licensed minister or judge should conduct a ceremony for the law to consider this marriage legal.

On the other hand, common-law marriages bypass all the above steps.

Generally, in common-law marriages, the following are the only criteria the couples should meet:

  • They live together in a committed relationship for some time (not defined in any state).
  • They must have the legal capacity to marry.
  • They think of themselves as married for all practical purposes.
  • They present themselves as a married couple to their family.
  • Friends and different members of their community.
  • Georgia common law marriage must have been established before January 1, 1997.

Despite not allowing common-law marriages anymore, the state of Georgia still recognizes valid common-law marriages from other states. Therefore, the Supreme Court of Georgia ruled as followed in Norman v. Ault,287 Ga. 324,326 (2010) “Georgia, like other states not generally recognizing common-law marriages, will recognize as valid a common-law marriage established under the laws of another state.”

Suppose that you and your common law spouse decide to move to a state that does not recognize this type of union. In this case, you don’t have to worry about your rights, as every state must recognize common-law marriages registered in states that support it.

It is also important to note that no state recognizes gay relationships as common-law marriages.

What Is the “Capacity to Marry”

As easy as it sounds, “capacity to marry” means your ability to get married to another person.

In Georgia, several factors define a rightful “capacity to marry”:

  • Both parties should be of sound mind
  • Both parties should be at least 18 years old (except for specific situations)
  • Both parties should have no living spouse of a previous undissolved marriage
  • Both spouses aren’t related to the prospective spouse by blood or marriage to a certain degree

If you don’t have the “capacity to marry” someone when you first start living with them, you can still marry them under common law in the future. For example, this could happen if you are younger than 19 when you start living with them or if one of you has still not finalized their divorce.

Common-Law Divorce

There is no common-law divorce neither in the state of Georgia nor in any other state. The law requires couples to separate under official divorce laws even if they were married under common law. In a lot of cases, common-law marriage adds significant complexity and difficulty to the divorce proceeding.

Since the couple has no official papers to document the union, there is no simple way for the court to determine whether a couple is married by common law. This complexity demands the couple to prove to the court their marriage before issuing the divorce papers.

If you are going through a common-law divorce, you should probably contact a divorce attorney you trust because several issues may arise, including:

  • Disagreement over property and asset accumulated during marital years
  • Arguments regarding custody and parenting plans
  • Court orders regarding child support payments or alimony

Proof of Common-Law Marriage

A couple will most likely have to prove to the court their common-law marriage at some point in their lives. For example, this might be while dealing with divorce, as mentioned above, or when dealing with inheritance.

Since common-law marriage can be challenging to prove, and holding themselves out to be married in public is one of the most critical requirements to do so, there are a few steps that a couple can take to make it easier, including:

  • Opening a joint bank account
  • Wearing wedding rings
  • Using the term” spouse” when talking about each other in public
  • Sharing the expenses and household duties
  • Using the same last name
  • Filing joint tax returns

Some couples may also opt to sign an affidavit or a contract which is not a prenup but allows both partners to attest to their consent and agreement to having the law consider their relationship a common-law marriage. This contract can help prove the marriage before a judge before moving to trial.

– Advantages of Common-Law Marriage

The main benefit of common-law marriage is that it will grant you the same rights and responsibilities as the ones given to formally married couples.

The most significant rights include:

  • Healthcare benefits
  • Hospital visitation rights
  • Jail visitation
  • Making medical and emergency decisions
  • Access to legal records
  • Rights of inheritance
  • Tax deductions and exemptions
  • Child custody rights and child support
  • The right to spousal support

– Disadvantages of Common-Law Marriage

  • Common-law marriages are confusing and often hard to prove.
  • Common-law marriage makes it hard for a spouse to collect benefits and incentives if it is not well established and clear.
  • Marrying without going through a legal process does not give a couple the ability to separate without an official divorce.

– Misconceptions About Common-Law Marriage

  • Cohabitation is the same as common-law marriage. Cohabitation is not enough, and a couple must present themselves in public as husband and wife.
  • Property purchased during a common-law marriage becomes a marital asset. The law does not grant the right to divide marital assets to common-law married couples. If a spouse is the sole owner of a shared residence, they can sell it without the other spouse’s consent and without splitting the proceedings.
  • Common-law parents have to each adopt any child they have together. Children born in a common-law marriage do not differ from those born in a traditional marriage. Common-law children have the full right to know their parents’ family and friends (i.e., uncles, aunts, grandparents, etc.). In other words, children born in a common-law marriage have the same rights as children born in a legal marriage. Both parents have automatic legal rights to the child without adoption. Moreover, parents have the same duties and obligations that legally married parents do. It is crucial to let your

Conclusion

Georgia no longer offers the option of common-law marriage to the state’s couples. In fact, common-law marriage is recognized in a minority of states and applied in even fewer states.

The main reason pushing states to revoke this law is the difficulty of proving such marriages and the complications this causes.

Here are some points to keep in mind:

  • Cohabitation and common-law marriage are not the same since the latter demands the couple to hold themselves out as a married couple.
  • Even though common law marriage in ga is not allowed anymore, the state still recognizes valid common-law marriages from other states or those registered in Georgia before 1997. Thus, the courts will give your common-law union “full faith and credit.”
  • Cohabitation and common-law marriage are not the same since the latter demands the couple to hold themselves out as a married couple.
  • Despite having many advantages like benefiting from the same rights and responsibilities of legally married couples, spouses married under the common law face several inconveniences.
  • If you find that a common-law marriage is the best option for you and your partner, make sure to make it clear by signing a contract, for example, and contact a lawyer you trust in case of any legal complexities.

Most states are changing their laws to try and minimize the number of common-law couples as much as possible. But, unfortunately, this means that valid common-law marriages from Georgia and other states will eventually become invalid and simply a thing of the past.

Divorce & Finance