What is Common Law Marriage?
Common law marriage is a legal union in which a couple, often with shared intent, lives together and presents themselves as a married couple without the presence of a traditional marriage license or ceremony. While the concept of common law marriage is often casually referred to in the context of modern relationships, it has a much more formal and restrictive definition. The term likely originated in the 17th and 18th centuries in Great Britain as a means of describing the marriage of individuals without a priest, a license, or other forms of official sanction. Although the practice of common law marriage has fallen out of favor in most modern jurisdictions, it persists in eight states in the U.S., often with very specific criteria that must be met.
Generally, there are three broad requirements for common law marriages where the institution exists. First, there must be an intention to enter into a permanent relationship as spouses. This can be shown through the parties’ actions and words. Second, the parties must live together for some period of time . Under most guidelines, some form of cohabitation must exist, though the required length and circumstances of residence varies by state and are subject to many factors. Third, there must be a public perception that the parties are married, and that there is a marriage contract between the parties (and not just fornication or sexual relations between them). This similarly is shown through the parties’ actions, as well as the treatment of them within their community, such as referring to them as husband and wife, having them file joint tax returns, sharing health insurance and retirement plans, and/or social security benefits, etc. These requirements are consistent whether the state recognizes common law marriage or not – the first two (intent to marry and cohabitation) are simply one form of "marriage," and the third is simply one statement against per se for the enactment of cohabitating romantic partners; the issue is not whether the state or jurisdiction in question recognizes or does not recognize common law marriage.
Does Georgia Recognize a Common Law Marriage?
Georgia does not recognize common law marriage. But this has not always been the case. The Georgia Supreme Court determined in Medlock v. Medlock that a common law marriage existed as of 1975, and asserted that "a presumption of a common law marriage" could be found from "habitual cohabitation and repute since June, 1964." Medlock effectively created a common law marriage, even though a statute to abolish it (OCGA 19-3-5) had been enacted in 1975, repealing the common law marriage statutes. The repeal was simply a legislative declaration about when the common law marriage statutes could no longer be used.
The Georgia Supreme Court ruled that new common law marriages were prohibited as of 1977. In Whelchel v. Whelchel, the Court made clear that after the "cut-off" date of January 1, 1977, as set forth by O.C.G.A. 19-3-28(a), new common law marriages could no longer be created.
This means that after January of 1977, if you want to enter into a marriage under Georgia law, you must go through the formality of obtaining a marriage license from your Probate Court and having a ceremony or other marriage event.
Implications for Unmarried Couples Cohabitating in the State of Georgia
While Georgia does not recognize common law marriages, unmarried couples living together may face certain legal implications. Living together may affect property ownership rights. In the event of a relationship ending, individuals may face challenges in property division and the equitable division of debts acquired during the relationship.
For equities in property to be considered for damages in court, the parties must have an oral or written agreement or contract that defines the nature of their relationship. Like a marriage, Georgia law does view live-in relationships as a joint venture of sorts in relation to property acquired during the relationship. To that end, under certain circumstances, Georgia courts will presume that property acquired during the relationship is joint or marital by the parties. Georgia will generally only presume the property is a joint venture if they find it impossible to ascertain which party contributed which amounts as separate property. In other words, the courts decide if a presumption applies on case-by-case basis in regards to specific assets to determine whether there was an intent to contribute money or property jointly.
Even if the presumption does not apply, it is important to note that a party may request a constructive trust on property in a live-in relationship as an exception to the statute of frauds. A constructive trust is an equitable remedy employed by a court considering the interests of the parties in joint property. While Georgia courts are reluctant to find a presumption of a joint venture relationship, the many unique circumstances of romantic relationships, especially those involving cohabitation, provide for several exceptions to the general rules of equity.
Georgia also has laws that define how to divide assets acquired during a relationship when the relationship is not formally recognized as a marriage. These laws apply to the equitable division of property upon litigation in divorce and probate actions. Without such laws, assets would be shared upon dissolution of a marriage, but in Georgia, parties must (1) live together in a relationship of "mutual undertakings" or "mutual benefit" which continues for a period of time; and (2) show a goal of sharing the proceeds of a joint enterprise.
Like the presumption of a joint venture, these laws do not automatically apply to cohabiting couples. Courts will only apply these laws to certain types of properties. The courts will not consider nonmarital relationship assets which cannot reasonably be expected to be managed or separated in the eyes of equity, such as personal possessions or items with great sentimental value. The law does however consider items of great value that would be on par with property considered marital, such as family heirlooms, real estate, vehicles of significant worth and advanced financial instruments.
The law does presume that property owned by a couple at the beginning of a relationship remains nonmarital unless the title changes over time to include both parties’ names. Property the couple acquires during the course of the relationship may be subject to equitable division. In other words, parties living together in a relationship of "mutual undertakings" or "mutual benefit," without being formally established as spouses, can still hold property legally entitled to equitable distribution. If the parties separate, assets will still be subject to equitable division notwithstanding a legal separation.
Common Law vs. Cohabitation in the State of Georgia
Despite all the discussions on what constitutes a common law marriage in Georgia, one fact remains clear: the Georgia Supreme Court has eliminated most common law marriages in Georgia. That is a good public policy since the creation of a common law marriage without the couple knowing it could lead to all sorts of legal headaches. The slightly stimulating way common law marriages were ended in Georgia was by the decision of McCarty v. McCarty; specifically, 260 Georgia 513 (1980).
The Georgia Supreme Court opened the door for the legislature to require formal marriages and no longer recognize a created common law marriages between the date the legislature enacted the Statute and the date the statute went into effect. So, in 1977, the Georgia Legislature passed a law determining that all marriages occurring after 28 September 1977 must be recorded to be lawful. The legislature thought this left around a three-month period where common law marriages could be created before the statute’s enactment would apply to them. However, the Georgia Supreme Court in McCarty ruled that any common law marriages created or in existence prior to the effective date of the statute would remain valid. That ruling left a small window of about a week to create a common law marriage in Georgia. (Yes, a week!)
So, if you are a couple whom had an established common law marriage in Georgia prior to the above date, your marriage is still legally valid in Georgia and is based on a factual question of whether you met the requirements for a common law marriage. If however, you were married in another state where common law marriages are lawful, then you have to record the marriage in Georgia to make it lawful in Georgia. If you didn’t record the marriage and ten years down the road you want a divorce, the first issue for the court will become whether the marriage was legal, not the date of separation. In this situation, the validity of the common law marriage in another state would be the governing law for the dissolution of the marriage.
The myths concerning common law marriage and mere cohabitation are very common. Many people think that cohabitation by couples is sufficient to create a common law marriage. In actuality, mere cohabitation is not a common law marriage and doesn’t establish a common law marriage. Cohabitation by itself may be evidence of a common law marriage, but it certainly is not conclusive. Other factors must be present to meet the common law requirements of a marriage. These factors include a present, mutual intent to enter into a marriage relationship; absence of other obstacles or impediments to marry, such as existing marriage or a close blood relationship; mutual assumption of a marital relationship; public recognition and assumption of the marriage relationship and cooperation by the parties in carrying out marriage responsibilities and publicly representing their status as husband and wife.
Influence of Common Law Marriages on Proceedings
When a common law marriage is at issue in divorce, inheritance, or child custody proceedings, litigants must be cautious. In the context of a divorce case, when a party to an action alleges that a common law marriage exists, the trial judge may be required to conduct a preliminary hearing on the issue of whether a common law marriage exists, which may delay disposition of the case. The same is true in inheritance actions, in which the existence of a common law marriage may require a jury trial, and where fictitious parties must be added to the case . In the child custody context, even a conclusory allegation of a common law marriage may leave a potential father seeking a paternity test for a child born to a woman with whom he has lived. Although Georgia no longer recognizes common law marriage as a basis for a divorce, claims of common law marriage remain an issue with which parties and counsel – especially Midland attorneys who need to think about Atlanta law – must contend.
Advice for Legal Recognition and Consultation
Suppose you believe you entered into a relationship that constitutes common law marriage in Georgia prior to its abolishment: The bottom line is that you should see an attorney if you have any doubts about the legal status of your relationship with your partner. If you are unsure whether a legal marriage exists or existed in the past, you should speak to an experienced attorney. Conclusive proof of all the elements of common law marriage is essential for a court to recognize the existence of such a marriage. Failing to obtain proper legal advice early may result in misunderstandings and further years of discord and litigation. If you have a common law marriage in an adjoining state or an uncommon circumstances from before 1911, your current relationship may need some legal advice too.
Commonly Asked Questions Regarding Common Law in the State of Georgia
Q: I have heard that a common law marriage in Georgia is created by the mere cohabitation of the parties. Is this true?
A: No, a common law marriage in Georgia is not created based solely upon the mere cohabitation of the parties. A common law marriage in Georgia requires the intent of the parties to enter into the marital relationship and generally requires more than cohabitation.
Q: In what court would I present my case for determination of a common law marriage in Georgia?
A: Since determining the existence of a common law marriage in Georgia requires the answer of a question of law in a proceeding (i.e., "Did the parties enter into a common law marriage?") and is not purely an action for divorce, it is a prerequisite that a De Novo action be filed in the Superior Court in order to obtain an answer on the issue of whether a common law marriage exists in Georgia. A De Novo action is one where the case is decided by a judge as opposed to a jury. A De Novo action is required when the context of the legal issue determines that the issue involves a judicially created right or public interest. The existence of a common law marriage in Georgia is one such issue. A De Novo action also allows the parties to proceed in the same De Novo action with their divorce proceeding (if they are married) so that the issues involved in both the divorce and the common law marriage dispute can be resolved in the same action.
Q: If I am not legally divorced from my former spouse , can I enter into a common law marriage with someone else in Georgia?
A: No, entering into a common law marriage in Georgia with someone else while you are still legally married to someone else is not allowed. A common law marriage in Georgia cannot exist where two individuals are already legally married to other spouses (as opposed to where one or two of the individuals may be divorced or separated from their former spouses and thus free to marry again).
Q: I have lived with my former spouse for many years in a significantly long-term relationship. Are we in a common law marriage since we are not legally married and have acted like husband and wife throughout our relationship?
A: No. To be a common law marriage in Georgia, the parties to the purported common law marriage must have entered into the marriage with the mutual intention to do so. A marriage entered into through the mere passage of time does not qualify as a common law marriage in Georgia.