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Married or Knot, Here I Come.

by | Jun 16, 2021 | Divorce

Crystal and James were together for only 3 months before James proposed. Crystal and James describe their relationship as “Halley’s Comet” because it is a once in a lifetime whirlwind of a romance. James considered it love at first sight. Crystal and James were married on March 2, 2018, exactly one year from the day they met. Crystal and James had an extravagant ceremony with over 300 guests in attendance. The dream wedding. James’s childhood pastor even presided over the ceremony. In the midst of all the chaos of planning the wedding and the excitement of actually getting married, Crystal and James neglected to actually obtain a marriage license. Despite that hiccup, Crystal and James continued on with their lives as a happily married couple. Crystal is an anesthesiologist who makes approximately $225,000 per year. James is a college professor who teaches English and makes approximately $70,000 per year. Although their relationship started off amazing, the 2 and a half years since being married have been challenging and have proven to them that they really did not know each other as well as they thought before getting married. Crystal has recently been having an affair and is ready to break things off. After finding out about the affair, James lost it! He too wants out of the marriage but he won’t leave with nothing. He is demanding alimony and 75% of the parties’ marital estate. Crystal is aghast by James’ outrageous demands and is seeking advice on whether their marriage is even valid. Besides, they didn’t even get a marriage license. The big question is, is their marriage valid in Georgia?

The State of Georgia stopped recognizing common law marriages entered into after January 1, 1997. O.C.G.A. § 19-3-1.1. However, Georgia will recognize any common law marriages entered into prior to that date.

In order for a marriage to be valid in Georgia, the parties must have the ability to contract, there must be an actual contract, and the marriage must be consummated according to the law. OCGA § 19-3-1; In re Estate of Love, 274 Ga. App. 316, 320–321 (3), 618 S.E.2d 97 (2005). In order to have the ability to contract, the parties must be of sound mind, must be at least 18 years of age; may not be related to the prospective spouse within the prohibited degrees, and neither party can be a party to a previous undissolved marriage at the time of contracting a new marriage. Georgia statutes outline that only individuals in the following degrees of relationship are prohibited from marriage: 1) father and daughter or stepdaughter; 2) mother and son or stepson; 3) Brother and sister of the whole blood or the half blood; 4) grandparent and grandchild; 5) aunt and nephew; or 6) uncle and niece. O.C.G.A. § 19-3-3. Here, there is no suggestion that either party was unable to contract.

To create a contract of marriage, the parties’ consent must be voluntary without fraud practiced upon either. A marriage contract is not required to be in writing. Spence v. Carter, 33 Ga. App. 279 (1924). Evidence to show that a marriage contract exists is by showing that the parties acted in a manner consistent with such an agreement and that the community believed such an agreement existed. The Georgia Court of Appeals held in Russell v. Sparmer, that evidence of an actual contract is “that the parties consented to marry each other and possessed a present intention to be married to each other.” See Russell v. Sparmer, 339 Ga. App. 207 (2016); Brown v. Brown, 234 Ga. 300, 301–302, 215 S.E.2d 671 (1975) (explaining that an “actual contract” for purposes of the marriage statute requires “a present intent to marry”). Georgia statutes also outline that  “[t]o constitute an actual contract of marriage, the parties must consent thereto voluntarily without any fraud practiced upon either”). O.C.G.A. § 19–3–4.

O.C.G.A. §19-3-30 requires a license to marry. However, Georgia statutes also require premarital medical examinations for disease and proof of legal emancipation for parties under the age of majority. Failure to comply with these formalities, however, does not invalidate the marriage. In Russell, the Court acknowledged that a license would be the best evidence of the existence of a marriage. See Russell, 339 Ga.App. at 212; see also Lefkoff v. Sicro, 189 Ga. 554, 564, 567 (1), 6 S.E.2d 687 (1939) (distinguishing between the fact of marriage and evidence thereof).

 The Supreme Court of Georgia nevertheless has recognized that “a marriage may be proved by the testimony of any witness who is acquainted with the facts that under the law are sufficient to constitute a valid marriage.” Davis v. Deloney, 165 Ga. 379, 381, 140 S.E. 759 (1927)

In Russell, the parties had an “unlicensed ceremonial and self-solemnized marriage.” It was undisputed that the parties began a relationship in the mid 1990s and began living together in 1997. During a trip to Greece in 1998, they purchased rings, exchanged vows in front of a church, and had an informal ceremony. The Court outlined that their vows included language of,  “I want to share the rest of my life with you and you alone,” and, “I am proud to spend the remaining days of my life with you. To be your woman, loving you and no other.” The couple also told a few waitresses on the evening of their marriage that they had been married and introduced each other as husband and wife upon return home to Georgia. There had also been “several greeting cards identifying [Russell] as his wife.”

The Court held that in absence of the license to marry, “a marriage deliberately and intentionally entered into —per verbi de presenti—that is, “I take you to be my wife,” and, “I take you to be my husband”—by parties able to contract, is to all intents and purposes a valid marriage, notwithstanding the parties have failed to comply with the statutory provisions.” Furthermore, “[a]ny mutual agreement between the parties to be husband and wife in presenti, especially where it is followed by cohabitation, constitutes a valid and binding marriage, if there is no legal disability on the part of either to contract matrimony.”

The Georgia Supreme Court’s decision in Askew v. Dupree, also outlined that, absent a statute affirmatively declaring to be void “marriages not celebrated in the prescribed form,” a marriage “deliberately and intentionally entered into” by parties who are able to contract is valid, notwithstanding their failure to conform to any other legal prerequisites. Askew v. Dupree, 30 Ga. 173, 189 (1860).

In short, an unlicensed ceremonial and self-solomenized marriage, is recognized as valid in the State of Georgia.

So, okay Chrystal, the marriage is valid.  But then there’s James’ demand for 75% of the marital estate and alimony.  All is far from lost…