The purpose of this guide is to help clarify the confusion and terminology surrounding couple relationships as it relates to their legal rights in Georgia. Often couples live together for a substantial time, acting essentially as husband and wife, without obtaining an official marriage license from the Department of Vital Statistics. This information may make it easier to determine if you have a legally recognizable relationship in Georgia and what to do if you want to end that relationship.
What Is Common Law Marriage?Common-law marriage is a legally recognized marriage in which the parties did not obtain a marriage license. Many people still believe they have entered into a common-law marriage. While it is not common today, there are still some couples who have this type of relationship. Understanding what it is -- and what it is not -- can help you navigate the waters of marriage and divorce.
Not all states allow these informal marriages to be created within their borders. To have a valid common law marriage, you must be in a state that legally recognizes common-law marriages when the common law marriage is formed. Among the states that recognize common-law marriages, there may be differences in how they consider common-law marriages to be properly created. That means that people who move from one state to another and have a common law marriage may experience a certain amount of difficulty if their marriage is not as easily recognized in their new state of residence.
Is Georgia a Common Law State?
Georgia is not a common-law state in the sense that a common-law marriage can no longer be created in this state. Since January 1, 1997, no one can create or form a common law marriage in Georgia. Any such marriages created in Georgia before January 1, 1997, will be recognized as common-law marriages. If you believe you may have created a common law marriage in Georgia before January 1, 1997, consult an attorney to ensure that it meets all the necessary criteria.
Does Georgia Recognize Common Law Marriages?
Yes, if you created a valid common law marriage under another state's laws and you move to Georgia, Georgia must recognize your marriage. Georgia courts will give your common-law marriage "full faith and credit". Georgia cannot ignore the laws of other states. It must recognize marriages legally created in another state even if Georgia itself would not allow such a marriage to be created or formed within its borders. Most states, however, are changing their laws so that these types of marriages will no longer be allowed in the future. That means valid marriages from Georgia and other states based on common-law will eventually become a thing of the past.
What Are Georgia's Common Law Marriage Requirements?
The parties must have the ability to contract
There must actually be a contract
There must be consummation of the marriage under the law
The marriage must have been established before January 1, 1997
A legally recognized common-law marriage in the state of Georgia must meet these four requirements. These requirements are essentially the same as those of ceremonially married couples who have obtained a marriage license, except for needing to be established before a specific date. The contract in a common law marriage is the agreement of the parties to be husband and wife and that they hold themselves out to be married in the public's eye. Consummation of the marriage refers to cohabitation, but there is no set length of time that the couple must live together.
How Do You End a Common Law Marriage?
A legally recognized common law marriage must be ended the same way as any other marriage -- through a divorce. Even without a ceremony or a marriage license, once a couple is recognized legally as having a common law marriage, they are married. If they choose to end their relationship, they will need to go through the process of divorce in the same manner as any other married couple seeking this separation.
Do You Need an Attorney to End a Common Law Marriage?While an attorney is not specifically required to end a marriage in Georgia, common-law marriages can make divorce more complicated. Often, this is because the couple does not have a marriage license or other recorded proof of their marriage. Depending on the specifics of their situation, there may be a gray area as to whether they have an established common-law marriage at all.
In order to settle these issues and move more smoothly through the divorce process, working with an attorney is often the right choice. Legal representation can help ensure that you and your spouse are treated fairly, and that all property and custody issues are handled to the benefit of everyone involved.
Common Law Marriage vs. Domestic Partnerships
Domestic Partnerships in Law
Common-law marriage is not the same as a domestic partnership. Some domestic partnerships are allowed under Georgia law, but these are primarily for same-sex couples. Some cities and counties allow people to register as domestic partners, but typically at least one person in the relationship must be an employee of that city or county. Common law marriages have no such requirements.
Domestic Partnerships in Fact
As traditional family values have evolved over the past few decades, couples may no longer want to enter into an official ceremonial licensed marriage. Instead, they may opt to live together taking on all the same responsibilities and features of traditional marriage -- property ownership, children, etc. Incredibly, there is no official name for these types of relationships; thus, we have dubbed it Domestic Partnerships in fact for this article's purposes so as not to confuse it with Domestic Partnerships in law. When a couple wants to separate, various questions and concerns arise surrounding this type of relationship.