Common Law Marriage Explained
The term "common law marriage" refers to a marriage that occurs without a license or formal ceremony, that is entered into by a man and a woman who are eligible to marry, and where the couple holds themselves out to be married. The couple may be referred to as a "common law" husband or wife, or a "non-ceremonial" husband or wife. In the United States, common law marriages have existed since at least 1810 in New Hampshire, and many of our current states were originally formed from territories where common law marriage was widely accepted. Those states eventually adopted statutes on the books, but the common law principles always have remained.
The jurisdictions (or states) that still recognize common law marriage impose certain requirements on couples to be deemed to have entered into a valid common law marriage. Although articulated a bit differently from one state to the next, the elements generally include that a couple:
These requirements might be relaxed a little from the above description if a couple enters into a marriage that is recognized under the laws of another state (as government licenses) and then moves to a common law state , but do not have a celebration in that particular state. For example, an individual may go to City Hall and get married, and then later after moving to a common law state, a dispute might arise over whether that individual should be deemed to have entered into a common law marriage because that couple never celebrated their marriage in the common law state.
Most of the common law states have given their citizens a "grace period" and "grandfathered" spouses of the old regime. For example, a couple could have moved to Georgia in January 1997 and gotten married in Tennessee in December 1996. Georgia will recognize that marriage as valid because Georgia had a grace period ending June 30, 2008. So long as the marriage occurred by the end of the grace period, common law marriage in Georgia would be recognized. However, if the couple moved to Georgia in January 2012 and the agreement to marry arose July 1, 2008, then that marriage is NOT recognized in Georgia as a common law marriage because it was entered into after the grace period ended.
Validity of Common Law Marriage in Georgia
Georgia has changed its legal stance on common law marriages throughout its history, going through several shifts since the founding of the United States. After initially allowing individuals to accept a common law marriage in lieu of legally binding divorces dating back to when Georgia became a part of the Union, the state eventually repealed the law in 1917.
The state legislature has since then passed several "objectively identifying facts necessary to a common marriage" – including a ceremony that includes a marriage license and duties associated with marriage should both individuals live in the state. Under current law, common law marriages entered into after January 1, 2004 are not valid in Georgia.
However, Georgia does recognize common law marriages under certain circumstances. Common law marriages are still valid if entered into before January 1, 1997 as long as they meet the requirements of a common law marriage under the law in the state in which the union took place. Likewise, common law marriages entered into in another state that recognizes common law marriage, under certain circumstances, may be eligible for recognition in Georgia.
Common-Law Marriages that Currently Exist in the State of Georgia
Existing common law marriages in Georgia prior to the change in the law on January 1, 1997 are still valid today. Although the law clearly prohibits new common law marriage from being created in Georgia on or after January 1, 1997, it does not untie existing common law marriages.
Georgia statute O.C.G.A ยง 53-6-10 provides that "any common law relationship … in existence on January 1, 1997…is validated and recognized by this state as if it had been entered into in accordance with the requirements of [Georgia’s statute on same-sex marriages]."
Furthermore, the Georgia constitution amendment voted into law in 2004 which provides that "Recognition of marriage as the union of one man and one woman shall be the only union recognized as a marriage in this state." and setting forth a definition of Marriage to mean "the legally recognized union of one man and one woman" does not affect the status of existing common law marriages in Georgia.
Consequences of Failure to Recognize Common Law Marriages
For couples who think they may have common law marriage, such as those that have lived together for a long time and/or had children together, the potential legal, financial and social rights that marital status provides can be important. In Georgia, there are several issues that arise where common law marriage is not recognized. Perhaps the biggest issue is that if you are not legally married, you do not have inheritance rights. So, if the person you had a common law relationship with died and there was no will, there is no way for you to inherit . In addition, without a marriage certificate, you likely will not be able to collect Social Security benefits or insurance benefits, such as the death of a spouse benefit or a health insurance claim. If there are children together, custody and visitation rights would be determined using a standard other than divorce law (although the resulting standard may not differ much). Child support obligations would be determined by the legal standard of either divorce law, or a mere co-parenting arrangement. Mr. Busse and Larson do see these in their practices and know the complications and consequences that arise.
Tips for Couples Living in Georgia
After reading the above information, the wheels might be turning in your head as you consider whether you are living in a common law marriage. While the above criteria apply, we are happy to help you determine whether a common law marriage may exist. The above information is focused on those individuals who may question the enforceability of an agreement entered into prior to a valid common law marriage being established, or that a provision of such an agreement may be unenforceable due to the partners not having been legally married at the time the agreement was entered into.
What if you don’t want to create a common law marriage? If you’ve just learned that Georgia does not recognize common law marriage, you may be asking yourself what alternatives you have if you would like to remain together with your partner but not validate your relationship through marriage. Well, you have a few good options. We always suggest that any cohabitating partners enter into an agreement with one another to divide their property and agree on alimony in the event of any separation or death. This is the best way to protect your interests, although it is only effective if the parties sign such an agreement while legal title to the property is still in one or both partners’ names. In the event that property has become jointly owned, that property is considered joint property to be divided by the agreement between the individuals after their separation. Another option is for a couple to enter into a pre-marital or pre-civil union agreement. This type of agreement often includes similar provisions as a cohabitation agreement or a prenuptial agreement. Finally, if a couple intends to marry, whether for the first time or not, they may want to enter into a prenuptial. These agreements have much stricter requirements than other agreements entered into before a marriage but can provide certainty in the event that the couple later divorces.
Closing Thoughts and Legal Outcome
As we conclude the discussion on common law marriage in Georgia, it is important to remember that the existence of a valid common law marriage can significantly impact a variety of legal issues, including property division, inheritance rights , and the ability to make medical decisions for an incapacitated spouse. This is why it is so vital to understand how common law marriage works in your state and what recognition you and your partner’s relationship may or may not have.
If you are unsure of your marital status or need legal assistance with matters related to your relationship, speak with an experienced Georgia family law attorney.