2021 Georgia Code
Title 19 - Domestic Relations
Chapter 3 - Marriage Generally
Article 1 - General Provisions
§ 19-3-5. What Marriages Void; Legitimacy of Issue; Effect of Later Ratification

1. Marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void. However, the issue of such a marriage born before the marriage is annulled and declared void by a competent court shall be legitimate.
2. In the case of persons unwilling to contract or fraudulently induced to do so, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife shall render the marriage valid. In the case of a marriage void on one of the grounds specified in paragraphs (1) through (3) of Code Section 19-3-2, after removal of the impediment to marriage, a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife shall likewise render the marriage valid.

(Orig. Code 1863, § 1657; Code 1868, § 1701; Code 1873, § 1702; Code 1882, § 1702; Civil Code 1895, § 2416; Civil Code 1910, § 2935; Code 1933, § 53-104.)

- For article, "Annulment of Marriage in Georgia," see 5 Ga. B.J. 22 (1942). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986).

JUDICIAL DECISIONS

Legislative intent as to applicability.

- In the use of the word "marriages" in the law, dealing with "marriages of persons unable to contract," it cannot be said that the legislature, in providing that the issue of such marriages before annulled will be legitimate, intended it to apply only to ceremonial marriages. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Legislature intended to remove stigma of bastardy from children if their parents go through marriage ceremony, even though the marriage is void because one of the parties was unable to contract marriage by reason of an existing marriage. Brazziel v. Spivey, 219 Ga. 445, 133 S.E.2d 885 (1963).

- Former Code 1933, § 53-101 (see now O.C.G.A. § 19-3-1) defined the essentials of a marriage, and this court repeatedly recognized common-law marriages as complying with these essentials. Former Code 1933, § 53-102 (see now O.C.G.A. § 19-3-2) specified those persons who were able to contract a marriage, and listed as one of the disabilities to contract a marriage, a previous marriage undissolved. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Marriages of persons unable to contract marriage are void. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944).

Contract of marriage entered into by insane person is void. Johnson v. Johnson, 172 Ga. 273, 157 S.E. 689 (1931).

Party to previous undissolved marriage cannot contract marriage and marriage by such person is void. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

Previous undissolved marriage of one of the parties to a marriage ceremony renders such party incapable of making a marriage contract. A marriage contract involving such a party is void. Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947).

Attempted bigamous marriage is void and may be disregarded without being decreed void by a judgment of court. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Previous undissolved marriage renders void an attempted second marriage. Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360 (1968).

When a man having a living wife enters into a ceremonial marriage to another woman, such purported second marriage is void. Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316 (1980).

Bigamous marriage, being void, is a nullity and no decree is necessary to avoid the marriage. The marriage may be treated as an absolute nullity by the parties to such a ceremony and by all the world. Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942).

This state has abandoned common-law rule that made children of void marriage illegitimate, and adopted the civil law rule that the issue of certain void marriages, before they were annulled, were to be considered legitimate. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24 (1975).

- Until marriages are declared void by competent court, children of such marriages are legitimate. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944).

If the parents participated in a marriage ceremony, even though the marriage might ultimately be void, children born before the marriage was annulled or declared void were legitimate. Hall v. Coleman, 242 Ga. App. 576, 530 S.E.2d 485 (2000).

Issue of bigamous marriage, born before the marriage is annulled and declared void by a competent court are legitimate. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

- Although a party to a bigamous marriage is convicted of the offense of bigamy, the issue of such second marriage, born before the commencement of any prosecution for bigamy shall, notwithstanding the invalidity of such marriage, be considered as legitimate. Perkins v. Levy, 158 Ga. 896, 124 S.E. 799 (1924); Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

When there are two ceremonial marriages and the second is void because the man had previously married and was undivorced, the children of the purported second marriage are legitimate if the second marriage has not been declared void and when the children were born before the commencement of a prosecution for bigamy. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24 (1975).

- Child of a bigamous common-law marriage, born before such marriage was annulled or declared void by a court, is legitimate and is the lawful heir of the child's deceased father. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951).

Policy codified did not legitimate offspring of illicit relationship. This declared policy was applicable only to those situations, broadly defined in the Code, when a marriage contract had been undertaken, but was void or voidable because of the legal inability of one of the parties to make a valid contract. Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955).

- If no marriage, either ceremonial or common law, ever took place, offspring are illegitimate. Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955).

- While ceremonial marriage may be void at inception, it may under given circumstances ripen into a valid marriage. Beebe v. Beebe, 227 Ga. 248, 179 S.E.2d 758 (1971).

- Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013).

- If the parties cohabited as husband and wife from the time of the ceremonial marriage, and so continued after the husband's disabilities were removed, they will be considered as lawfully married. Hawkins v. Hawkins, 166 Ga. 153, 142 S.E. 684 (1928).

When parties enter into a ceremonial marriage which is not valid because of the incapacity of one of them, unknown to the other, but the impediment is later removed, their continued cohabitation thereafter as husband and wife is sufficient to create the presumption of a valid common-law marriage, nothing further appearing. Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316 (1980).

Marriage of boy under 17 (now 16), may be ratified and confirmed by continuing, after arriving at the age of 17 (now 16), to cohabit with his wife as such. Smith v. Smith, 84 Ga. 440, 11 S.E. 496 (1890); Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675 (1918); Jones v. Jones, 200 Ga. 571, 37 S.E.2d 711 (1946).

Marriage by female under 14 (now 16) may be ratified by her after she has reached the age of 17. Powers v. Powers, 138 Ga. 65, 74 S.E. 759 (1912); Dunson v. State, 25 Ga. App. 172, 102 S.E. 899 (1920).

- When at the time of purported marriage, and at the time of order granting alimony on the application of the wife for the support of their child, the partner was less than 17 years of age (now 16), the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether the father could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697 (1945).

- In a suit by reputed wife for alimony, the husband is estopped from denying her competency to contract marriage if he has in fact married her, lived with her many years as his wife, and reared a family of children by her. Dillon v. Dillon, 60 Ga. 204 (1878); Bell v. Bennett, 73 Ga. 784 (1884).

Cited in Mims v. State, 43 Ga. App. 100, 157 S.E. 901 (1931); Griffin v. Booth, 176 Ga. 1, 167 S.E. 294 (1932); Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942); Baxter v. Rogers, 195 Ga. 274, 24 S.E.2d 52 (1943); Mackey v. Mackey, 198 Ga. 707, 32 S.E.2d 764 (1945); Flynn v. Flynn, 210 Ga. 280, 79 S.E.2d 534 (1954); S. v. S., 211 Ga. 365, 86 S.E.2d 103 (1955); Diggs v. Diggs, 91 Ga. App. 634, 86 S.E.2d 639 (1955); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Bryant v. Bryant, 216 Ga. 762, 119 S.E.2d 573 (1961); King v. King, 218 Ga. 534, 129 S.E.2d 147 (1962); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965); Aetna Life Ins. Co. v. Harley, 365 F. Supp. 1210 (N.D. Ga. 1973); Thompson v. Brown, 254 Ga. 191, 326 S.E.2d 733 (1985); Argo v. State, 188 Ga. App. 102, 371 S.E.2d 922 (1988).

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 16 et seq., 41 et seq., 54, 83, 84.

1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, § 1 et seq.

- 55 C.J.S., Marriage, §§ 11 et seq., 21, 30, 36 et seq.

- Legitimation by subsequent marriage annulled under a statute declaring that certain marriages shall be void from the time their nullity is declared, 27 A.L.R. 1121.

Validity of contract executed under duress exercised by third person, 62 A.L.R. 1477.

Misrepresentation or mistake as to identity or condition in life of one of the parties as affecting validity of marriage, 75 A.L.R. 663.

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.

Marriage to which consent of one of parties was obtained by duress as void or only voidable, 91 A.L.R. 414.

Validity of marriage celebrated while spouse by former marriage of one of the parties was living and undivorced, in reliance upon presumption from lapse of time of death of such spouse, 93 A.L.R. 345; 144 A.L.R. 747.

Construction and application of statutes which in effect, under prescribed conditions, validate, after removal of impediment, marriage celebrated while a former spouse of one of the parties was living and undivorced, 95 A.L.R. 1292.

Right to alimony, counsel fees, or suit money in case of invalid marriage, 110 A.L.R. 1283.

Rights and remedies in respect of property accumulated by man and woman living together in illicit relations or under void marriage, 31 A.L.R.2d 1255.

Validity of solemnized marriage as affected by absence of license required by statute, 61 A.L.R.2d 847.

Liability of one putative spouse to other for wrongfully inducing entry into or cohabitation under illegal, void, or nonexistent marriage, 72 A.L.R.2d 956.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.