A marriage entered into while one of the parties was still married to somebody else is void from the very beginning. It is not a marriage that a court later cancels. It never took effect.
What the Statute Says
OCGA 19-3-5(a) provides that “[m]arriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void.” A person with a living spouse from an undissolved marriage is one of those persons who cannot contract.
No Court Order Is Needed to Make It Void
Gearllach v. Odom, 200 Ga. 350 (1946), put it bluntly. “A previous undissolved marriage of one of the parties to a marriage ceremony renders such party incapable of making a marriage contract. A marriage ceremony involving such a party is void.” The Georgia Supreme Court added that such an attempted marriage “is utterly void, and may be disregarded without ever being decreed void by a judgment of a court.”
That is why the defense works. If there was never a marriage, there is nothing for a divorce court to dissolve.
People still go to court about it, and for a practical reason. In Gearllach, the ceremony was on file at the courthouse and appeared on the public record as a valid, existing marriage, which is what sent the husband looking for a court order.
It Can Be Cured
Do not assume the answer is permanent. Under OCGA 19-3-5(b), once the obstacle is gone – the earlier marriage is finally dissolved – “a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife” makes the marriage valid.
So if the two of you learned about the problem, fixed it, and then went on living as husband and wife, the defense may no longer be available.
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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!