One defense to a Georgia divorce is that there was never a valid marriage for the court to dissolve.
What Georgia Requires
OCGA 19-3-1 sets three requirements for a valid marriage in this state: “(1) Parties able to contract; (2) An actual contract; and (3) Consummation according to law.”
OCGA 19-3-2(a) then says who is able to contract. A person must be of sound mind, must be at least 18 years of age unless a narrow exception applies, must have “no living spouse of a previous undissolved marriage,” and must “[n]ot be related to the prospective spouse by blood or marriage within the prohibited degrees.”
That list is the whole of it. Regretting the marriage, or having married in a hurry, is not on it.
Capacity Is Measured on the Wedding Day
The defense rises or falls on the law that was in force when the ceremony took place, not the law today.
Mikell v. Mikell, 219 Ga. 550 (1964), shows how that cuts. A party moved to dismiss a divorce petition on the ground that the marriage contract was void because the defendant had been under the legal age to marry. The problem was that a 1962 Act had made the age limits inapplicable in the case of pregnancy, so the marriage was lawful when it was made.
The movant attacked that Act as unconstitutional. The Georgia Supreme Court rejected the attack and held the trial court “did not err in overruling the motion to dismiss the petition for divorce.”
Georgia’s age rules have changed a great deal since 1964, so an older decision is a poor guide to a recent marriage.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!