2021 Georgia Code
Title 19 - Domestic Relations
Chapter 3 - Marriage Generally
Article 1 - General Provisions
§ 19-3-1. Prerequisites to Valid Marriage

To constitute a valid marriage in this state there must be:

1. Parties able to contract;
2. An actual contract; and
3. Consummation according to law.

(Orig. Code 1863, § 1653; Code 1868, § 1697; Code 1873, § 1698; Code 1882, § 1698; Civil Code 1895, § 2411; Civil Code 1910, § 2930; Code 1933, § 53-101.)

- For article discussing changes in and case application of statutes concerning marriage, divorce, and custody law in 1976 to 1977, see 29 Mercer L. Rev. 103 (1977). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For article, "A Holy Secular Institution," see 58 Emory L.J. 1123 (2009). For article, "Speech or Conduct? The Free Speech Claim of Wedding Vendors," see 65 Emory L.J. 241 (2015).

ANALYSIS

• General Consideration
• Evidence
• Common-law Marriage
• Cohabitation
• Same Sex Marriage

Common-law marriages are just as valid as any other marriage. 1958-59 Op. Att'y Gen. p. 89.

- While there is no statute relating to common-law marriage in this state, such marriages have long been recognized by the courts; such a marriage must be between persons who are otherwise able to contract a valid marriage in Georgia and who actually intend to be, or hold themselves out to be, husband and wife. 1967 Op. Att'y Gen. No. 67-35.

Common-law marriages are legal from inception provided essentials of marriage contract are present; namely: (1) the parties are able to contract; (2) it is an actual contract; and (3) it is consummated according to law; however, should either party be unable to meet any of the prerequisites the marriage would not be legal from the marriage's inception. 1958-59 Op. Att'y Gen. p. 89.

Mutual agreement to be husband and wife by parties able to contract, followed by cohabitation, is recognized as a valid common-law marriage; such a marriage is not defined in terms of length of time of relationship, but rather intent of the relationship. 1967 Op. Att'y Gen. No. 67-35.

- If it were disclosed that the common-law marriage was unknown to relatives, friends, or neighbors, that fact might be taken as one circumstance bearing upon the credibility as a witness of the party claiming the existence of the common-law marriage, but the lack of publicizing the marriage would not affect its validity if there was an actual contract or marriage. 1957 Op. Att'y Gen. p. 93.

Relationship illicit in inception when intent of marriage is not present is presumed illegal no matter how long the relationship continues; if a cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation. 1967 Op. Att'y Gen. No. 67-35.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 13 et seq., 36 et seq.

- 55 C.J.S., Marriage, § 4 et seq.

- Constitutionality of marriage statutes as affected by discriminations or exceptions, 3 A.L.R. 1568.

Habit and repute as essential to common-law marriage, 33 A.L.R. 27.

Validity of common-law marriage in American jurisdictions, 39 A.L.R. 538; 60 A.L.R. 541; 94 A.L.R. 1000; 133 A.L.R. 758.

Right to attack validity of marriage after death of party thereto, 76 A.L.R. 769; 47 A.L.R.2d 1393.

Continued cohabitation between parties to ceremonial marriage contracted when one of them was insane as creating presumption of common-law marriage, 85 A.L.R. 1302.

Inference or presumption of marriage from continued cohabitation following removal of impediment, 104 A.L.R. 6.

Proxy marriages, 170 A.L.R. 947.

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest, 14 A.L.R.2d 624.

Judicial declaration of validity or existence of common-law marriage, 92 A.L.R.2d 1102.

Property rights arising from relationship of couple cohabiting without marriage, 69 A.L.R.5th 219.