Unmarried partners in Georgia sometimes build something together and then fight over it. Whether a court will hear the claim turns on an old contract rule.
The Rule
OCGA 13-8-1 provides that “[a] contract to do an immoral or illegal thing is void.” In Rehak v. Mathis, 239 Ga. 541 (1977), the Supreme Court of Georgia applied that section to a claim between unmarried cohabitants and held the consideration was immoral, so the claim failed.
The Ground Has Shifted Under It
Rehak was decided when fornication was a misdemeanor in Georgia. In 2003 the Supreme Court held that statute unconstitutional, reaffirming that “the government may not reach into the bedroom of a private residence and criminalize the private, noncommercial, consensual sexual acts of two persons legally capable of consenting to those acts.” In re J.M., 276 Ga. 88 (2003).
The Court of Appeals has been candid about what that means. “Since 2003, the Supreme Court of Georgia has not ruled on whether Rehak remains binding precedent.” Those statements “bring Rehak’s continued applicability into doubt,” but the Court of Appeals still treats it as binding “absent additional guidance from the Supreme Court of Georgia.” Cates v. Brown, 357 Ga. App. 326, 329 (2020).
What Actually Decides Cases
The narrower question usually controls. OCGA 13-8-1 does not apply “where the object of the contract is not illegal or against public policy, but where the illegality or immorality is only collateral or remotely connected to the contract.” Cates, 357 Ga. App. at 329.
In Cates, a couple lived together unmarried from 1999 to 2014, co-owned a restaurant, and both put money into two houses. Her unjust enrichment claims were not barred, because her contributions “were not premised on sexual involvement” and any romantic involvement was “incidental.”
So the question is not whether the couple lived together. It is what the claim is actually built on.
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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!