What is Common Law Marriage?
Common law marriage is a form of marriage in which a couple is legally recognized as married without having gone through a ceremony or license, in accordance with the law of the state. Generally speaking, common law marriage is formed through the cohabitation of two people through their actions and preferences towards holding themselves out as a married couple. In other words, there has to be intent to be married and a public image of a married couple.
The exact requirements for a common law marriage to form is dependent upon the state which the couple resides in. Currently, the states that recognize common law marriage and their requirements are: Alabama, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire , Oklahoma, Pennsylvania, South Carolina, Texas, Utah, and Washington.
The general requirements for common law marriage to form are:
- (1) Both parties are free from legal duties to other persons;
- (2) Both parties are competent to marry, meaning that they have the mental capacity to enter into a contract;
- (3) Both parties consent to the marriage; and
- (4) The marriage is consummated with sexual intercourse.
Although these requirements may sound simple, in practice they can get complicated in the context of dissolution of marriage proceedings. The parties may disagree as to when the marriage was agreed to commence, or whether one party met their duties as the spouse once the relationship was established.
Is Common Law Marriage Legal in Georgia?
Georgia is no longer a state that recognizes common law marriage. Just as the name implies, common law marriage is an agreement between two parties to live together as spouses without going through the formal legal process of marriage. In the past, Georgia used to recognize this form of marriage. In fact, until 1996, as long as two parties had established a common law marriage before they attempted to marry and meet certain requirements and conditions, their resulting marriage was recognized and their contractual rights and obligations applied. Georgia had an express public policy sanctioning and encouraging common law marriage.
In 1996, however, the General Assembly repealed the common law marriage provisions in Georgia Code and amended the law on ceremonial marriage. Since then, any couple who has not gone through the ceremonial marriage process has no legal rights if one of the partners dies without a Will. For instance, if a man and woman have lived together as husband and wife for a number of years and one dies suddenly, the official partner (the one the decedent was legally married to) can enforce all of the contractual rights and obligations of that marriage over the other party. Under Georgia law, this will usually always happen unless there is proof to the contrary.
NOTE: There are very few states that still recognize common law marriage. The states that have that recognition are: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah.
Exceptions to the Rule
A handful of states have carved out exceptions to the rule. Most notably, Georgia recognizes common law marriages created by action before those states abolished the common law option for couples. For example, Colorado and Texas no longer permit an actual common law marriage to occur within their borders. However, plenty of common law marriages exist, and Georgia will recognize a valid marriage from another state. Georgia also recognizes pre-1967 Common Law Marriages formed in Georgia. O.C.G.A. ยง19-3-4.1 (c).
Documentation: 802.1d GEORGIA COMMON LAW MARRIAGE AFFIDAVIT and Certificate; 825.1a GEORGIA AMENDMENT TO MARRIAGE LICENSE IN CASE OF COMMON LAW MARRIAGE; 840.1-A GEORGIA MARRIAGE LICENSE APPLICATION IN CASE OF COMMON LAW MARRIAGE.
Effects of No Common Law Marriage in Georgia
The void left by the loss of common law marriage in Georgia creates a host of legal and personal implications, particularly for those who entered into a marital relationship intending to have access to the legal benefits of marriage and support that Georgia law does not currently provide for cohabitating couples. These may include the division of property at the end of the relationship, spousal support after the relationship has ended, spousal privilege in court, sharing of custody rights for children, and federal preferences and privileges created by federal law for those who are legally married.
Property Rights
The most obvious consequence of the loss of common law marriage in Georgia is the inability for parties to divide property according to Georgia’s marital property statutes when the relationship ends. The Georgia law regarding the division of property in a divorce, called equitable division of property, requires that the Court make a fair allocation of property accumulated during the marriage upon request of either party to a divorce action. This division is otherwise unavailable to unmarried but cohabitating couples. An unmarried cohabitor has no right to rely on equitable division of property as a means to divide property at the end of the relationship. Georgia Courts have attempted to fill this gap through the use of equitable remedies such as constructive trusts, resulting trusts, and equitable estoppel, but current case law has not clearly defined substantive rules for how the courts will handle these cases.
Spousal Support
Georgia Courts will not grant spousal support in cases where the parties were never legally married. So an unmarried cohabiting couple will not receive spousal support from the other party when the relationship ends. Unlike equitable division of property, spousal support is provided in Georgia by statute and supports the financially dependent spouse when the economically strong spouse ends the relationship. The current statutes do not provide for the situation where the parties are living together in a manner analogous to a traditional marriage in order to support each other financially and emotionally, but the term "marriage" cannot be defined broadly enough to encompass these relationships.
Child Custody
Neither parent will be presumed to have primary custody over the minor children after separation nor will either parent maintain a legal presumption for child support. Neither will have standing to file an action for custody of the child or child support . A presumption of equal co-parenting is not created even if the relationship was long term. If the parents are not married, they must enter into a written agreement for support and custody and both remain obligated to their children despite the end of the relationship. This can cause substantial problems for a child of unmarried parents after the relationship ends depending on the ability of the parents to agree on support and custody of the children, especially if the parties had relied on the expectation of spousal support in exchange for a sexual relationship in planning their finances and family responsibilities.
Co-Parenting
Since there is no legal relationship that will establish right between the co-parents, if one of the parties wishes to remove themselves from all of the rights and responsibilities associated with being a parent, it is extremely difficult. Since neither parent will have a legal expectation of a right to or responsibility for care of the child, the other parent cannot demand participation in parenting time or care of the child. This can have the effect of a parent walking away from the child with little to no recourse for the remaining parent and the child. This can be resolved by either parent seeking services from the District Attorney’s Office for child support or filing a private child support action. The Court will then establish a custody and support award for the child.
Federal Preferences and Privileges
Certain federal laws provide for a requirement of marriage in order to be eligible for preferences and privileges. These can include qualifying for an immigration based reservation number for a family member, being eligible for health care benefits after the death of your spouse or catastrophic injury, preference for citizenship on the basis of legal marital status and the right to inheritance of property held in a retirement plan, pension or 401(k) plan or similar. For example, federal pensions and 401(k)s are governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). In most cases, when an employee dies, ERISA deals with the distribution of retirement assets. This will involve naming a beneficiary for the account who then receives those benefits. However, if the worker was married at the time of retirement, a spousal beneficiary must be named unless the spouse formally waives the right to claim the funds each year. If the worker fails to designate a beneficiary, or does so without first waiving the rights of their spouse, generally the surviving spouse will be entitled to the retirement account benefits.
How to Protect Yourself in Georgia
Fortunately for couples who cohabitate but choose to stay unmarried, rights can be protected through legal contracts. A cohabitation agreement is a type of contract that allows partners to specify how certain issues will be handled in the event of separation. For instance, some couples may establish a legal agreement that specifies how to handle division of assets, debts, or real estate holdings in the event the partnership dissolves. Just like a prenuptial agreement or a postnuptial agreement, such documents should be drafted with the help of an experienced family law attorney. While the terms of the agreement are entirely subject to negotiation between the couple, a court generally must approve any property settlement agreement if the couple has been legally married.
Married or unmarried, there are several ways to protect one’s rights when cohabiting, but be vigilant. Georgia does not currently have a statutory domestic partnership law, but a domestic partnership agreement acknowledged by the Superior Court of Georgia has been found to be enforceable and legally binding on the parties to the agreement.
Hiring a Family Law Attorney
Couples in Georgia who are unsure if their relationship status is recognized under the law as common law marriage should not hesitate to seek legal advice. A consultation with a family law attorney can help determine whether or not a legal common law marriage exists, and what rights and responsibilities arise from that status. Family law attorneys have experience working with all aspects of family law matters , whether they are traditional marriages or common law. They can advise clients on financial implications like debt, property distribution, and tax concerns, as well as issues pertaining to children that may include child custody, child support, and visitation rights. Additionally, a family law attorney can provide insight into how a common law marriage might affect other areas of a client’s life, such as estate planning, business partnerships, and spousal rights in employment matters and health care.
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