Common Law Marriage Defined
Common law marriage is a legal union between two people that is created by action or conduct rather than by a ceremonial marriage in another manner. Commonly, it requires that two people must express their intent to be married, live together as a married couple, and hold themselves out to the public as being married. In other words, they would typically have the same last name, have joint bank accounts, file taxes jointly, show themselves out in public as Mr. and Mrs., et cetera. Common law marriages are expressly authorized by statute in some jurisdictions but the concept of common law marriage is not recognized everywhere in the United States .
In a common law marriage, the spouses have identical rights and obligations as those of formally married couples. In many states, this is interpreted to mean that a couple who has undergone a common law marriage share equally in the property owned in, by, or for the benefit of either spouse. This would likely mean that in a divorce, there is not alimony paid to either party generally since they have not been previously divorced. In Georgia, if a common law marriage were found to have existed during the marriage, the divorce would have the same legal requirements as if the spouses had been married under Georgia’s law regarding ceremonial marriage.
Status of Common Law Marriage in Georgia
As time has gone on, the concept of marriage outside of the traditional ceremony has lost its hold on Georgia law. In fact, Georgia abolished common law marriage in 1997. As it stands today, common law marriage is no longer a legally-recognized institution in the state of Georgia, and non-traditional relationships have since been granted this recognition. If you and your partner are already living together and have been for some time, it’s likely that you are beginning to wonder how the arrangement would be regarded if it were to end. Georgia law regards individuals as single until there is a ceremony forever changing the marital status of one or both parties.
History of Common Law in Georgia
Historically, common law marriage has been recognized in Georgia. However, Supreme Court of Georgia precedent in 1983 made common law marriages impossible in Georgia. The Supreme Court not only overruled 140 years of precedent, but overruled the legislative enactment from many years prior to the decision that still codified common law marriage.
In 1977, in Bell v. Bell 240 Ga. 432 (1979), the Supreme Court of Georgia recognized common law marriage as a valid marriage in Georgia. In Bell, the Court stated, "We therefore adopt the rule that a common law marriage may be established in Georgia by evidence which is clear, distinct, and convincing in its terms." 240 Ga. 432 (1979).
In 1981, the Georgia Legislature enacted O.C.G.A. §19-3-1(c) which provided:
Nothing contained in this Code section shall inhibit or affect a common-law marriage, entered into in this or any other state or territory wherein such marriages are recognized, prior to June 30, 1977; nor shall any provision of this Code section affect or relate to the enforceability of ante-nuptial contracts, monthly allowances, an equitable division of property, or alimony, which imposition was made by common law principles prior to June 30, 1977.
The Georgia Legislature passed O.C.G.A. §19-3-1(c) to override Bell, but the Supreme Court of Georgia had its own ideas. In O’Kelly v. Alden 250 Ga. 352 (1982), the Supreme Court held:
Although the legislature attempted to enact a law which would have created a common law marriage as an existing entity, our decision in Bell v. Bell, supra, was not tied to the absentity of a common law marriage act in Georgia as was the common law marriage in effect in 1975. We concluded in Bell, supra, that there was no need for statutory enactment to validate the contract of a common law marriage.
O.C.G.A. §19-3-1(c) was again overruled in what many Georgia divorce lawyers consider to be a significant change in the law in Georgia. The Supreme Court of Georgia again overruled O’Kelly v. Alden in McFadden v. McFadden 250 Ga. 261 (1986). Because of these Supreme Court decisions, common law marriages have not been a legally recognized concept in Georgia for nearly thirty years.
In 2006, the Georgia Legislature changed the law to allow a new situation where a de facto marriage could be recognized by the Georgia divorce courts. Under O.C.G.A. §19-3-4(a): "An action to declare the existence of a de facto marriage may be brought by a spouse or former spouse against a spouse or former spouse." O.C.G.A. §19-3-4(e) allows the divorce court to declare a de facto marriage even if the parties have a legal marriage. Since this exception, there are no common law marriages in Georgia.
Common Law Marriage Alternatives in Georgia
Common law marriage is not the only way that you can recognize your union with another person. In Georgia, there are several alternatives to common law marriage. You can pursue a legal marriage, where you obtain a marriage license and have a ceremony. You can also obtain a marriage license, but choose to not go through with the marriage for any number of reasons. This does not legally bind you to one another, but it does show the intent to marry in the event that common law marriage comes up or some other issue arises in the state.
You can also enter into a domestic partnership. This alternative is open to same-sex and heterosexual couples in Georgia, so there are no issues with filing a joint tax return or obtaining health benefits from one another’s employer. In this partnership, you and your significant other agree to share certain aspects of your lives. A few other options for alternate unions are cotenancy and cohabitation. In a cotenancy, you and another party each own one half of a property. You cannot own the property jointly in Georgia. In cohabitation, both parties live together but do not have to be romantically involved. Cohabitation simply means that you and your partner share living expenses, household duties and other such things.
Property & Inheritance Considerations
The inability to establish a common law marriage in Georgia can have significant consequences for all aspects of property ownership. This includes the ability to make decisions jointly regarding the sale of property, inheritance matters, and even the division of debts and liabilities. When it comes to inheritance, Georgia has a strict system of intestate succession in case a person dies without a will (or dies with a will that does not dispose of all his/her property). In this scenario, property is divided based on a set hierarchy, giving priority first to a spouse and children, and only after that to grandchildren, great-grandchildren, parents, grandparents, siblings, and so on. A surviving domestic partner who was not legally married to the deceased at the time of death, and thus cannot be considered a "spouse" for purposes of intestate succession, would not have any right to inheritance. If a person wishes to leave property to a domestic partner, they must do so by way of a will . If a person wishes to make decisions regarding real estate or funds in banking or brokerage accounts jointly with a domestic partner, they can do so by placing the other person on title to the real estate or as a joint account holder. However, it should be noted that Georgia’s laws regarding spousal rights on jointly owned property are strict, and those rights may effectively transfer to a domestic partner who is put on title to the property. Whether or not this result is intended should be carefully considered prior to taking such action. Finally, if a couple will be contributing to a joint property and there is any potential that one of them may be liable for a debt, it may be prudent to enter into a contract regulating the rights on the jointly held property. Such a contract could, for example, provide for the right to reimbursement for a contribution, or the right to a proportional share of the sale proceeds, or an obligation to support a claim against a creditor.
Checking the Validity of Common-Law Marriage From Other States
Exceptions for Common Law Marriages Validly Established from Other States
Unless it meets the exceptions for couples already living as husband and wife, the next step is to determine whether Georgia will recognize the common law marriage from the other state.
In order to determine whether Georgia will recognize the common law marriage from the other state, the 2006 revised Georgia Broad Form Marriage Recognition Act must be reviewed. Under this law, common law marriage is not valid when:
a. A party to the marriage is a resident of Georgia at the time of the marriage;
b. The marriage is entered into in Georgia; and
c. The marriage is in violation of Georgia law.
Exceptions
There are several exceptions which allow the recognition of common law marriage established in a foreign jurisdiction.
1. Validity.
The foreign common law marriage was validly entered into in a foreign jurisdiction under the law of that jurisdiction. In other words, the couple must have satisfied the requirements of that particular state in order to establish a valid common law marriage.
2. Separated and Residing.
The parties are not still married to each other. In other words, if a common law couple separates and one party remarries, then the separation and remarriage are factors which would support a findings that Georgia would then recognize the common law marriage from the other state.
3. Continued Representation.
The parties married each other under the belief they were legally entitled to marry each other. In other words, the parties went into the common law marriage believing they were legally entitled to do so. Further, if the marriage occurred under the belief that the parties were single and not married, then the representation, in the eyes of the law, would be acceptable for Georgia to recognize the common law marriage.
4. Creation of Restitutionary Interest
The parties have created a settled circumstance in reliance on the validity of the marriage contract which would have been materially increased if the marriage contract had been declared valid through a legal procedure. In other words, the parties must have relied upon the validity of the common law marriage in such a way that it materially affected their present situation.
If the state who granted the common law marriage is not on the list above, Georgia will not recognize the common law marriage as valid and will treat the parties as single individuals with no rights concerning each other.
How to Get Legal Help
For individuals in Georgia seeking legal guidance on relationship status and associated rights, there are various resources available. Legal aid organizations provide services to those who qualify based on income and other requirements. Family law attorneys can also offer assistance for a fee, whether by the hour or through a retainer agreement; family law lawyer directories are available online . Georgia’s Probate Court website provides an interactive questionnaire to help individuals determine if they may be eligible to file for a declaration of marital status. Many courts and government offices have residency requirements prior to eligibility for requesting a declaration of marital status. Online guides are also available through resources such as the State Bar of Georgia and other legal information websites, offering insight on when and how to obtain a declaration, as well on topics related to divorce and property division.