Georgia abolished common law marriage going forward, but it did not erase the ones that already existed.
The Cutoff Date
OCGA 19-3-1.1 provides that “[n]o common-law marriage shall be entered into in this state on or after January 1, 1997,” and that “[o]therwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state.”
Read the date carefully. The bar reaches marriages entered into on January 1, 1997 as well as after it. A common law marriage completed before that day remains a marriage, and it can only be ended by death or divorce.
Proving One Now
Every common law marriage litigated in Georgia today is a claim about something that happened decades ago, usually raised after a partner dies or a divorce is filed. The party asserting the marriage carries the burden and “must establish its existence by a preponderance of the evidence.” In re Estate of Smith, 298 Ga. App. 201, 202 (2009). The elements are the same ones OCGA 19-3-1 requires of any marriage: “the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement.”
The Timing Problem
“All three of these elements as set forth in OCGA ยง 19-3-1 must be met simultaneously,” and “[a] legal marital relationship cannot be partial or periodic.” In re Estate of Smith, 298 Ga. App. 201, 202 (2009).
In In re Estate of O’Connell, 354 Ga. App. 333 (2020), a couple lived together on and off for years, separated at times, and saw other people in between. That was not enough.
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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!