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Common-law marriage in Georgia: does it count, and do you need a divorce?
Summary
No new common-law marriage can be formed in Georgia on or after January 1, 1997. Living together, sharing a last name or calling each other husband and wife doesn't make you married here.1
A valid common-law marriage formed in Georgia before 1997 still counts, and Georgia recognizes a common-law marriage validly formed in another state that allows them. Either way, it's a real marriage, and ending it takes a divorce.1, 2
The 1997 cutoff
Georgia law says no common-law marriage can be entered into in Georgia on or after January 1, 1997. Common-law marriages that were otherwise valid and formed before that date are still recognized.1
So the date matters. A couple who started living together in Georgia in 1998 isn't married, however long they've been together.
If your relationship began before 1997
Georgia law lists three essentials for any valid marriage: both people able to marry, an actual agreement to be married, and consummation according to law. To be able to marry, neither person could already be married to someone else.3, 4
Whether a couple formed a common-law marriage is a question of fact, decided from the evidence. If you think yours began before 1997 and your partner disagrees, talk to a lawyer about what evidence you'd need.2
Common-law marriages from other states
Georgia recognizes a common-law marriage validly formed under the laws of another state that allows them. The court applies that state's rules to decide whether the couple was married.2
Living together in Georgia can't create one. In that case, the court said the couple's conduct after moving to Georgia could only back up an agreement they had made while living in the other state.2
Ending a common-law marriage
A valid common-law marriage is a marriage, and Georgia keeps recognizing it. There's no informal way to end one. You'd file for divorce like any married couple, and the same rules apply, including the 6-month residence rule.1, 5
If you were never legally married
If you lived together but weren't married, there's no divorce to file. Disputes over a home, car or money you shared are handled outside the divorce process, so talk to a lawyer if a lot is at stake.
Children are different. When parents aren't married, only the mother has legal custody until the father legitimates the child. The father can file a legitimation petition and ask for custody or parenting time in the same case, and the judge can set child support.6, 7
Questions you might ask a lawyer
- Is there enough evidence that we formed a common-law marriage before 1997 or in another state?
- If we weren't married, how can I protect my share of property we bought together?
- How do I establish my rights to our children?
Common questions
Does Georgia recognize common-law marriage?
Only if it was formed in Georgia before January 1, 1997, or validly formed in another state that allows it.1, 2
How long do you have to live together to be common-law married in Georgia?
No length of time makes you married in Georgia today. No common-law marriage can be formed here on or after January 1, 1997.1
Do I need a divorce to end a common-law marriage?
Yes, if it's a valid one. A common-law marriage that Georgia recognizes is a real marriage, so ending it takes a divorce.1
Sources
- ^ O.C.G.A. § 19-3-1.1, common-law marriage cutoff (Justia)
- ^ Norman v. Ault (Ga. 2010), common-law marriage from another state (FindLaw)
- ^ O.C.G.A. § 19-3-1, essentials of a valid marriage (Justia)
- ^ O.C.G.A. § 19-3-2, who can marry (Justia)
- ^ O.C.G.A. § 19-5-2, residence requirements (Justia)
- ^ O.C.G.A. § 19-7-25, custody of a child born to unmarried parents (Justia)
- ^ O.C.G.A. § 19-7-22, legitimation petitions (Justia)
Laws and court rules change. If something here looks out of date, email help@divorce.city.