2020 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

O.C.G.A. § 19-3-1 applies equally to both ceremonial and common-law marriages. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

"According to law" had reference to common law as expounded in Askew v. Dupree, 30 Ga. 173 (1860), and recognized by the legislature as then existing, but which on that feature was intended to be "regulated" by statute. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951), adopting dissenting opinion in Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687 (1939).

In order for valid marriage to exist there must be ceremonial marriage or common-law marriage entered into in good faith. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

To constitute valid marriage in this state, there must be parties able to contract. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).

Marriage is in law complete when parties able to contract have actually contracted to be man and wife in the forms and with the solemnities required by law. Pitts v. State, 147 Ga. 801, 95 S.E. 706 (1918).

Discussion of the presumption of validity or invalidity of second marriage. See Scott v. Jefferson, 174 Ga. App. 651, 331 S.E.2d 1 (1985).

Cited in White v. White, 41 Ga. App. 394, 153 S.E. 203 (1930); Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943); Graves v. Carter, 207 Ga. 308, 61 S.E.2d 282 (1950); Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955); Wolverine Ins. Co. v. Leach, 100 Ga. App. 570, 112 S.E.2d 10 (1959); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483 (1978); Thompson v. Brown, 254 Ga. 191, 326 S.E.2d 733 (1985); Dennis v. State, 220 Ga. App. 420, 469 S.E.2d 494 (1996); Wright v. Goss, 229 Ga. App. 393, 494 S.E.2d 23 (1997); Finch v. Dasgupta, 251 Ga. App. 637, 555 S.E.2d 22 (2001).

Evidence presented must show present intent to marry; an agreement to marry in the future is not sufficient. Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

All presumptions necessary to make marriage valid attach on proof of formal ceremony and cohabitation by the parties under the belief that the parties were lawfully married. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720, 193 S.E. 909 (1937).

- When marriage is regularly solemnized and parties live together, there is a presumption of capacity to contract marriage, and of the existence of all other facts necessary to render the marriage valid; and this presumption prevails until the contrary appears. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720, 193 S.E. 909 (1937); Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938); Brown v. Hogan, 72 Ga. App. 691, 34 S.E.2d 619 (1945); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949).

- Law favors validity of marriages, and marriage is presumed to be valid until the marriage's validity is negatived by disproving every reasonable possibility of the marriage's validity. Brown v. State, 208 Ga. 304, 66 S.E.2d 745 (1951).

O.C.G.A. § 19-3-1 reflects Georgia's policy favoring the validity of marriages; validity is presumed absent proof negating the possibility of validity. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

Absence of proof of entry into a present marriage contract as required by O.C.G.A. § 19-3-1 supported the finding that a petitioner for year's support was not the decedent's common-law spouse. Holmes v. Holmes, 232 Ga. App. 434, 502 S.E.2d 294 (1998).

- Burden is upon one who attacks validity of marriage to show that the marriage is invalid by clear, distinct, positive, and satisfactory proof. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720, 193 S.E. 909 (1937); Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938); Brown v. Hogan, 72 Ga. App. 691, 34 S.E.2d 619 (1945).

Whether or not common law marriage exists is question of fact, requiring proof of simultaneous existence of all elements of O.C.G.A. § 19-3-1. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992); Dixon v. State, 217 Ga. App. 267, 456 S.E.2d 758 (1995).

- Marriage may be shown by such circumstances as act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of the marriage and the evidence in each case is for the jury. Murray v. Clayton, 151 Ga. App. 720, 261 S.E.2d 455 (1979); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

- Evidence that parties held themselves out as married when it was to their benefit and maintained their non-marital status when it was to their benefit supported finding that there was no marriage as such legal relationship cannot be partial or periodic. Baynes v. Baynes, 219 Ga. App. 848, 467 S.E.2d 195 (1996).

Agreement on which common-law marriage is founded must contain mutual intent to be married in praesenti, not a present intent to marry in the future. Hubbard v. State, 145 Ga. App. 714, 244 S.E.2d 639 (1978).

- To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given. An express future condition is absolutely fatal to a claim of marriage, and cannot be explained away by circumstances, as it shows mental reservations which are incompatible with consent, whether the condition relates to the creation of the marriage status, or to the duration of the relations of the parties. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

- Marriage is matter of public interest, and general repute in community is admissible upon such an issue. Murray v. Clayton, 151 Ga. App. 720, 261 S.E.2d 455 (1979).

- When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. Brown v. Brown, 234 Ga. 300, 215 S.E.2d 671 (1975); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

Party seeking to prove prior marriage founded upon cohabitation must show every element necessary to validity of such a prior marriage by proving not only that the prior marriage was consummated in accordance with the rules of law, but that such alleged former spouse was single and possessing every other qualification for a valid marriage. Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938).

- When a common-law marriage has been satisfactorily proved, inconsistent acts and declarations of the parties subsequent thereto, although entitled to consideration, do not overcome the direct proof of the existence of the marriage. Evans v. Marbut, 140 Ga. App. 329, 231 S.E.2d 94 (1976), cert. dismissed, 238 Ga. 583, 234 S.E.2d 506 (1977).

Presumption as valid contract, arising from cohabitation and repute, yields to proof of subsequent ceremonial marriage of one of the parties. Addison v. Addison, 186 Ga. 155, 197 S.E. 232 (1938); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949).

Ceremonial marriage will not prevail over properly proven previous common-law marriage. Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949), later appeal, 207 Ga. 308, 61 S.E.2d 282 (1950).

Rules of estoppel between parties cannot be invoked to determine validity of marriage. Bell v. Bell, 206 Ga. 194, 56 S.E.2d 289 (1949).

Georgia does not allow the validity of a marriage to be challenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402 (N.D. Ga.), aff'd, 723 F.2d 918 (11th Cir. 1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984).

Evidence supported jury's determination that common-law marriage existed. See Ridley v. Grandison, 260 Ga. 6, 389 S.E.2d 746 (1990).

Conflicting evidence allowed the jury to find evidence of a common-law marriage between a decedent and a widower, which began before January 1, 1997, when common-law marriages were no longer recognized in Georgia, and continued to the date of the decedent's death, because they were able to contract as the decedent was a widow and the widower was divorced, they had a sexual relationship and shared a bedroom, they agreed to be married and the decedent accepted a ring from the widower which she wore daily until her last hospitalization, the widower referred to the decedent as his wife, they opened joint financial accounts, to which they both contributed monies, and shared household expenses, they opened separate individual retirement accounts, designating each other as sole beneficiaries, they incurred debt together, they bought land which was titled in both of their names, he signed consents for her last hospitalization, and they introduced each other to others as husband or wife. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

When a couple had not agreed to live together as man and wife and had not held themselves out to the world as husband and wife, but had, on the contrary, frequently referred to themselves as engaged to be married, there was no common-law marriage. In re Estate of Wilson, 236 Ga. App. 496, 512 S.E.2d 383 (1999).

Common-law marriage is valid marriage in this state. Steed v. State, 80 Ga. App. 360, 56 S.E.2d 171 (1949).

There is no common-law marriage de futuro cum copula in this state. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

- By the common law and the law of this state a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation, is recognized as a valid marriage. Askew v. Dupree, 30 Ga. 173 (1860); Dillon v. Dillon, 60 Ga. 204 (1878); Wynne v. State, 17 Ga. App. 263, 86 S.E. 823 (1915); Stewart v. Price, 89 Ga. App. 62, 81 S.E.2d 28 (1954).

To establish a common-law marriage in Georgia three requisites must be met. There must be: (1) parties able to contract; (2) an actual contract of marriage; and (3) consummation by cohabitation in Georgia. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

In order for a common-law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770, 403 S.E.2d 235 (1991).

Georgia law allows proof of common-law marriage by proof of cohabitation in conjunction with the husband and wife holding themselves out to the world as married. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

In a will contest, in which it was disputed whether the decedent was married by common law to her purported widower, a son's requested jury charge that a common-law marriage could not be partial or periodic was adequately covered in the trial court's charge on the elements of a common-law marriage under O.C.G.A. § 19-3-1. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement, and all three of these elements as set forth in O.C.G.A. § 19-3-1 must be met simultaneously. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

Evidence tending to show the existence of a common law marriage may include such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97 (2005).

- Three requirements of law must be met, all at one time, in order for there to be a common-law marriage. Brown v. Brown, 234 Ga. 300, 215 S.E.2d 671 (1975); Evans v. Marbut, 140 Ga. App. 329, 231 S.E.2d 94 (1976), cert. dismissed, 238 Ga. 583, 234 S.E.2d 506 (1977); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

O.C.G.A. § 19-3-1 establishes the three essential elements of a marriage in this state, all of which must be met during one period of time in order to prove a common law marriage. Edwards v. Edwards, 188 Ga. App. 821, 374 S.E.2d 791 (1988).

Essential elements of a marriage are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. These requirements must be satisfied simultaneously in order for a marriage to exist. Brown v. Carr, 198 Ga. App. 567, 402 S.E.2d 296 (1991).

- There was evidence supporting the finding that an administrator and a decedent were not common-law spouses. The couple separated numerous times, and the administrator had a boyfriend during one separation, filed tax returns as a single person, and did not list the decedent as the father on her daughter's birth certificate or give her his last name; furthermore, the administrator was the only person who testified in support of her common-law marriage, while the remaining two witnesses testified that neither the administrator nor the decedent held themselves out as husband and wife. In re Estate of Smith, 298 Ga. App. 201, 679 S.E.2d 760 (2009).

Appellant and the decedent did not have a common law marriage despite their long cohabitation and the appellant's testimony that they had exchanged rings; the decedent's sister and brother testified that the decedent never referred to the appellant as the decedent's wife, never mentioned the private vows, and specifically denied that they were married. Further, the couple separated and had relationships with other people at times. In re Estate of O'Connell, 354 Ga. App. 333, 840 S.E.2d 730 (2020).

It is not sufficient to agree to present cohabitation and future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943).

Fact of cohabitation is essential in establishing common-law marriage in this state. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951), adopting dissenting opinion in Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687 (1939); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675 (1979).

Agreement of marriage may be inferred from cohabitation and reputation unless there is other evidence indicating that such an agreement was not present. In order for a relationship based upon repute and cohabitation to obtain the status of marriage at least one of the parties must have believed in good faith that their marital agreement made them husband and wife. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

Marriage may be inferred from proof of cohabitation, and that the parties held themselves out to the world as husband and wife. Such proof may be made by general repute among neighbors and others in a position to know the facts. Simeonides v. Zervis, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

Informal agreement not consummated by cohabitation is insufficient to establish common-law marriage. Tabor v. Fowler, 119 Ga. App. 259, 167 S.E.2d 220 (1969).

- When the probate court was clearly authorized to determine from the evidence both that decedent and a woman had intended to live together as husband and wife subsequent to decedent's divorce from his first wife and that they actually had done so, the fact that they planned at some point in the future to secure a license and formalize their union with a ceremonial marriage did not negate the existence of a common-law marriage. Brown v. Carr, 198 Ga. App. 567, 402 S.E.2d 296 (1991).

Woman's statement that she and decedent had "talked some about getting married but never did it" did not necessarily negate the existence of a common-law marriage relationship for a couple may enter into such a relationship yet nevertheless discuss and plan a marriage ceremony for the purpose of formalizing the arrangement. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770, 403 S.E.2d 235 (1991).

- When only proof in case is of continuous cohabitation, presumption is that it was lawful. When to this proof is added some affirmative proof of holding themselves out as man and wife, it adds so much to the force of presumption, and length of time strengthens the probative force of the presumption. This presumption of marriage from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence. Simeonides v. Zervis, 127 Ga. App. 506, 194 S.E.2d 324 (1972).

- Absence of proof of entry into a present marriage contract resulted in the affirmation of the trial court's finding that the tenant was not the common law spouse of the decedent. In re Estate of Legrand, 259 Ga. App. 67, 576 S.E.2d 54 (2002).

Same Sex Marriage

Lesbian marriages.

- Attorney General, that is, the State of Georgia's interest, as an employer in promoting the efficiency of the Attorney General's important public service outweighed the plaintiff's personal associational interests in a lesbian marriage. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), cert. denied, 522 U.S. 1049, 118 S. Ct. 693, 139 L. Ed. 2d 638 (1998).

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.