2020 Georgia Code
Title 19 - Domestic Relations
Chapter 3 - Marriage Generally
Article 3 - Antenuptial Agreements, Marriage Contracts, and Postnuptial Settlements
§ 19-3-63. Construction of Marriage Contract; Attestation

Every marriage contract in writing, made in contemplation of marriage, shall be liberally construed to carry into effect the intention of the parties, and no want of form or technical expression shall invalidate the same. Such marriage contract shall be in writing, signed by both parties who agree to be bound, and attested by at least two witnesses, one of whom shall be a notary public.

(Orig. Code 1863, § 1726; Code 1868, § 1767; Code 1873, § 1777; Code 1882, § 1777; Civil Code 1895, § 2482; Civil Code 1910, § 3001; Code 1933, § 53-407; Ga. L. 2018, p. 155, § 1-1/HB 190.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of the second sentence of this Code section for the former provisions, which read: "The contract must be attested by at least two witnesses."

- For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For article, "Parentage Prenups and Midnups," see 31 Ga. St. U.L. Rev. 343 (2015).

Children provided for in settlement, when no words indicate different import are presumed children of marriage which gives occasion to the settlement. Knorr v. Raymond, 73 Ga. 749 (1884).

- In a divorce case in which a wife appealed the trial court's denial of the wife's motion for partial summary judgment on her claim that the antenuptial agreement was unenforceable, the antenuptial agreement was a marriage contract pursuant to O.C.G.A. § 19-3-62(b), and the agreement was unenforceable since the agreement had only been signed by one witness, and O.C.G.A. § 19-3-63 required that every marriage contract in writing, made in contemplation of marriage, must be attested by at least two witnesses. Sullivan v. Sullivan, 286 Ga. 53, 684 S.E.2d 861 (2009).

Parties' premarital agreement, viewed as a whole, was a marriage contract made in contemplation of marriage, not a prenuptial agreement made in anticipation of divorce, and the trial court therefore correctly denied enforcement of the agreement due to noncompliance with the attestation requirement of O.C.G.A. § 19-3-63. Fox v. Fox, 291 Ga. 492, 731 S.E.2d 676 (2012).

Attendant and surrounding circumstances may always be resorted to, and proof of the local usage or understanding of words is admissible to arrive at the meaning intended by the parties. Brown v. Ransey, 74 Ga. 210 (1884).

- Husband's argument that an antenuptial agreement contained a severability clause and that, under O.C.G.A. § 13-1-8(a), the failure to abide by the portion of the agreement concerning attachment of lists showing property owned or held did not void the entire agreement was without merit; the trial court was not bound by the language of the agreement as to severability, but the question was whether there was a misrepresentation or nondisclosure of a material fact. Alexander v. Alexander, 279 Ga. 116, 610 S.E.2d 48 (2005).

Intention of parties must be carried out even though court has to disregard rules of grammatical construction to effectuate the intent. Ardis v. Printup, 39 Ga. 648 (1869); Brown v. Ransey, 74 Ga. 210 (1884).

- Trial court committed reversible error by permitting testimony as to the contents of the parties antenuptial agreement into the final decree of divorce because that agreement had been previously ruled void and unenforceable, and the existence of the agreement and its contents were not to be considered by the fact-finder; hence, the matter was remanded for a new trial. Chubbuck v. Lake, 281 Ga. 218, 635 S.E.2d 764 (2006).

Because a prenuptial agreement addressing alimony issues was not an agreement made in contemplation of marriage, the trial court erred in ruling that O.C.G.A. § 19-3-63 applied; however, the criteria in Scherer v. Scherer, 249 Ga. 635 (1982) was satisfied by the disclosure of the husband's assets. Dove v. Dove, 285 Ga. 647, 680 S.E.2d 839 (2009).

- Trial court did not did not err in upholding the validity of an antenuptial agreement because the agreement was not subject to the dual attestation requirement of O.C.G.A. § 19-3-63 when it was a contract made in contemplation of divorce, not a contract made in contemplation of marriage; the antenuptial agreement addressed alimony, and it referred explicitly to the possibility of divorce, explaining that the parties wanted the agreement to govern in that event. Lawrence v. Lawrence, 286 Ga. 309, 687 S.E.2d 421 (2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, §§ 90, 103 et seq.

- 41 C.J.S., Husband and Wife, §§ 128, 129.

- Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941.

Modern status of views as to validity of premarital agreements contemplating divorce and separation, 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstance surrounding execution - modern status, 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms - modern status, 53 A.L.R.4th 161.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract, 3 A.L.R.5th 394.

Validity of postnuptial agreements in contemplation of spouse's death, 87 A.L.R.6th 495.