2021 Georgia Code
Title 19 - Domestic Relations
Chapter 4 - Annulment of Marriage
§ 19-4-1. When Annulments May Be Granted

Annulments of marriages declared void by law may be granted by the superior court, except that annulments may not be granted in instances where children are born or are to be born as a result of the marriage.

(Ga. L. 1952, p. 149, § 1.)

- For article, "Annulment of Marriage in Georgia," see 5 Ga. B.J. 22 (1942). For note, "Annulment in Georgia: A Product of Judicial Restraint and Legislative Confusion," see 14 Ga. L. Rev. 81 (1979). For comment on Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965), see 3 Ga. St. B.J. 219 (1966). For comment which compares this section with § 19-3-2, see 21 Mercer L. Rev. 465 (1970).

JUDICIAL DECISIONS

Purpose of section.

- Purpose of statute to uphold the interest and welfare of children is manifested in the provisions insuring their legitimacy, prohibiting annulment, and thus requiring divorce to dissolve such marriages. Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978).

O.C.G.A. § 19-4-1 was promulgated for purpose of protecting children of an otherwise void marriage, in other words, this statute, by requiring parties to an otherwise void marriage to seek a divorce rather than an annulment, prevents those parties from bastardizing children which are a product of the marriage. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

- Georgia legislature, in promulgating O.C.G.A. § 19-4-1, carved out an exception to the common-law rule that if one party to a marriage has a previous unresolved marriage, then that party is unable to contract a subsequent valid marriage, and the later marriage is void from the beginning. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

- In Georgia, a person who enters into a marriage that is void because of a legal impediment must seek a divorce in order to terminate the purported marriage; traditionally, a divorce proceeding seeks to terminate a valid marriage, thus it appears that O.C.G.A. § 19-4-1 confers validity upon an otherwise void marriage; but under closer scrutiny, that section does not render legitimate an otherwise void marriage. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

Annulment statutes protect children of marriages previously considered void by prohibiting annulment and thus guaranteeing their legitimacy. Consistent with this purpose, the legislature provided that such marriage could be dissolved only by divorce. Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965). For comment, see 3 Ga. St. B.J. 219 (1966).

Right to alimony lies as necessary concomitant remedy to fulfill the general design of this statute. Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978).

Under Social Security Act, 42 U.S.C. § 416(h)(1)(A), state law determines whether a marriage is valid or not in order to determine family status for purposes of social security benefits. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

- In enacting O.C.G.A. § 19-4-1, under which, if a child has been born or will be born of a marriage otherwise void because of legal impediment, the proper procedure for resolution of such marriage is to obtain a divorce rather than an annulment, the Georgia legislature did not intend to confer validity on such otherwise void marriage; therefore, the widow of such void marriage is not the legal widow for purpose of receiving social security benefits. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

- O.C.G.A. § 19-4-1 does not confer validity on an otherwise void marriage for purpose of permitting a spouse to such marriage to receive benefits that only inure to the husband or wife of the legal marriage; in other words, denying a spouse the ability to receive benefits as a legal widow does not cast doubt on the legitimacy of the child born of a void marriage. Furthermore, to permit such spouse to receive benefits intended to inure only to the benefit of a legal widow would wreak havoc on any scheme set up to protect a surviving spouse. Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981).

- 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).

Cited in Andrews v. Andrews, 91 Ga. App. 659, 86 S.E.2d 669 (1955); Bryant v. Bryant, 216 Ga. 762, 119 S.E.2d 573 (1961).

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq.

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

- 55 C.J.S., Marriage, § 46 et seq.

- Epilepsy as ground for avoiding marriage, 7 A.L.R. 1503; 31 A.L.R. 148.

Right to annulment of marriage induced by false claim that husband was cause of existing pregnancy, 11 A.L.R. 931; 19 A.L.R. 80.

Meaning of "voluntary cohabitation" within statute relating to annulment of marriage, 26 A.L.R. 1068.

Representation that proposed marriage could and would be dissolved by annulment or divorce as ground for annulment, 93 A.L.R. 705.

Avoidance of procreation of children as ground for divorce or annulment of marriage, 4 A.L.R.2d 227.

Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage of one, as affecting right to annulment, 4 A.L.R.2d 542.

What constitutes duress sufficient to warrant divorce or annulment of marriage, 16 A.L.R.2d 1430.

Refusal of sexual intercourse as ground for annulment, 28 A.L.R.2d 499.

Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 A.L.R.2d 483.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 A.L.R.3d 759.

Concealment or misrepresentation relating to religion as ground for annulment, 44 A.L.R.3d 972.

What constitutes mistake in the identity of one of the parties to warrant annulment of marriage, 50 A.L.R.3d 1295.

Incapacity for sexual intercourse as ground for annulment, 52 A.L.R.3d 589.

Spouse's secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment, 66 A.L.R.3d 1282.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846.

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