Georgia allows a divorce where a spouse lacked the mental capacity to enter the marriage, but the incapacity has to have existed on the wedding day.
What the Statute Says
OCGA 19-5-3(2) lists “[m]ental incapacity at the time of the marriage” as a ground for total divorce. The timing is the whole of it. A mental health problem that develops later is not this ground, and Georgia treats it separately under OCGA 19-5-3(11).
Capacity to Marry Is a Real Requirement
Marriage in Georgia is a contract, and OCGA 19-3-1 says a valid one needs “[p]arties able to contract.” OCGA 19-3-2(a)(1) then provides that to be able to contract marriage a person must “[b]e of sound mind.”
When that requirement is not met, OCGA 19-3-5(a) supplies the consequence: “Marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void.” Because the marriage was void from the start, this ground may also be the basis for an annulment.
Why You Still Have to Go to Court
A void marriage does not simply evaporate. As the Georgia Supreme Court put it in Johnson v. Johnson, 172 Ga. 273 (1931), a marriage “is more than a mere contract. It creates a status – a status of vast importance to society.” So it stands on the public record until a court says otherwise.
Getting Better Can Make the Marriage Valid
Under OCGA 19-3-5(b), once the impediment is removed, “a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife shall likewise render the marriage valid.”
So a spouse who recovers, understands what the marriage is, and continues living in it as a spouse has ratified it. The ground is gone at that point.
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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!