The concept of “common-law” marriage still confuses many people, even those who advise people on their marital rights. Part of the reason for the confusion is that some states still recognize common law marriage, some only recently prohibited it, and most states are required to recognize marriages that were lawful in other states.
What Is Common-Law Marriage?
Very simply, a “common-law marriage” means that two people who have held themselves out as a married couple are deemed to be married in the eyes of the law. However, it is not as simple as any two people living together for a period of time being considered married. In the few states where common law marriage is recognized, the requirements are that the two people must be:
- A heterosexual couple
- In a state that recognizes common-law marriage (at present, only ten states and the District of Columbia)
- For a “period of time” not specified in any state
- Holding themselves out as married (calling themselves husband and wife, filing joint tax returns, sharing rent, bills, and income)
- Intending to be married
Georgia recognized common-law marriage until January 1, 1997. Any couple who entered into a common-law marriage before that year is recognized as being married.
What Rights Do Common-Law Spouses Have in Georgia?
If the marriage is valid, a common-law spouse has the same rights and duties as a ceremonially wed spouse. If the partners establish that their common-law marriage was entered into before January 1, 1997, or if their marriage was lawfully entered into in another state, then they have the same rights as any other married couple.
Once the marriage is established, a spouse has the same property rights and inheritance rights as a legal spouse. The difficulty may be in establishing the existence of the “common law marriage.” Kessler & Solomiany, LLC recommends that anyone who has a long-term common-law marriage and intends to remain in the relationship consult an attorney to confirm that all the formalities have been met. A surprising number of people believe they are in common-law marriages and discover too late that they are not.
How Do I End a Common-Law Marriage in Georgia?
In times past, ending a common-law marriage was as easy as establishing one. The parties simply gathered their possessions and parted ways. Today, it is not so easy. Because the parties are considered fully married with the right to division of marital property and marital debt, the only way to sever a common-law marriage in Georgia is through a divorce.
At Kessler & Solomiany, LLC, we know that any divorce is difficult. It can be even more so when the start date of the marriage is unclear, and the circumstances of the marriage are tenuous, as a common-law marriage may be. However, during the period that the husband and wife held themselves out to be married, they are considered to be “married” under Georgia law, and so are entitled to a division of property according to Georgia divorce law.
Child support, visitation, and custody rights are also handled in the same way whether the marriage was traditional or common-law. Georgia law does not distinguish between a common-law marriage and a traditional marriage when the best interests of the child are involved.
Is My Common-Law Marriage Valid if I Leave Georgia?
If you established a common-law marriage in Georgia before January 1, 1997, and you want to move out of the state, then your rights will be determined by that state’s marriage laws. Virtually all states recognize marriage under the Fair Faith and Credit Clause of the U.S. Constitution, but you will have the burden of proving that your marriage was valid in Georgia before the cutoff date. To do so, you will need to show that:
- The parties were able to enter into a contract (all of them were of legal age and mentally able to contract),
- A contract was actually formed (both parties actually agreed to hold themselves out as married),
- The marriage was consummated according to the law (yes, that is still a requirement), and,
- The marriage was established before January 1, 1997.
If you are able to show this by a preponderance of evidence in court, then you will be able to prove you are married. The best way to do this is to have an attorney who can tease out the facts necessary to prove that the parties were able to make a contract and actually did so when they began cohabiting.
Common-law marriage rights are complex and unclear by nature. If you need to exercise your rights to terminate a marriage or to protect your rights in a dispute, you need the help of a skilled attorney who understands marital and family law. Contact Kessler & Solomiany, LLC at (404) 688-8810 for a free consultation on this matter. We can help you understand this uncommon issue.