What exactly is common law marriage?
Common law marriage is often misunderstood. In the simplest terms, it is legally recognized cohabitation between a couple. In jurisdictions that do recognize common law marriage, it creates a legally binding relationship similar to those created by traditional marriage. The difference between the two is when and how a marriage is created. Traditional marriages are typically preceded by a wedding ceremony or other official document. Common law marriages, on the other hand, are created in the absence of these formalities (although, as we will discuss in separate posts coming soon on Georgia law and common law marriages , Georgia does not recognize common law marriages).
Common law marriages may require conditions or components unique to the particular jurisdiction in which the couple resides. In jurisdictions that still recognize common law marriage, those conditions typically fall within the following parameters:
As noted above, Georgia does not recognize common law marriages. However, it is important to know about common law marriages for several reasons, including the potential liability involved if a person enters into a common law marriage in a state that does recognize it but then moves to Georgia; or for purposes of identifying potential and non-potential alimony claims or equitable distribution claims of a party to a divorce action.
Does Georgia approve of common law marriage?
Georgia does not recognize common-law marriages. However, the state did recognize them until 1997.
Anyone who has just moved to Georgia from elsewhere in the U.S. may be surprised to learn that Georgia does not have a common law marriage. That is, a couple must enter into a written contract acknowledging they are husband and wife, undergo a civil or religious ceremony, or become legally married (at least in spirit) in some other way. You may believe you got married by living together, having a child together, or filing a joint tax return. If you were living in another state, you may be correct. But if you have since come under Georgia law, you are unmarried.
However, in 1997, the Georgia legislature abolished common-law marriage, although it stopped short of making these kinds of marriages void if entered into prior to 1997. As a result, even though Georgia does not have a common-law marriage, there may be individuals living in Georgia who, by virtue of "grandfathering," actually do have a common-law marriage.
Historically, Georgia senses the importance of individuals having the choice to enter into a legal, binding relationship. The last statutes in Georgia on the subject of common-law marriage go back to 1976. In those days, the legislature passed several laws on marriage (and divorce). It also defined a number of things that would allow a marriage to qualify as valid, including:
In 1980, the Georgia legislature revisited the whole concept of marriage and redefined it more simply. The definition no longer included a list of all the possible methods by which a marriage could potentially be established. Instead, the current definition recognizes a marriage generally as a relationship between persons who have 1) entered into a written contract, or 2) undergone a civil or religious ceremony acknowledging they are married.
By 1997 the legislature made a final push to end the common-law marriage issue in Georgia for good. It passed an amendment to the Georgia statutes declaring that the creation of a marriage could not be established through evidence of any action or actions of the parties showing their intent to be married. The only way a person may be considered married in Georgia is through a document or a ceremonial marriage. Respectfully, Georgia thus exited from the list of those states that allow common law marriages.
Aside from the elimination of common law marriage altogether, the Georgia divorce statute was amended to allow any individual who has been married to someone in a common law marriage to divorce them by filing a suit in the county where either party resides or is found.
Common law marriage’s effects in Georgia
A common law marriage has the potential to produce significant consequences for the parties involved. Even if there are relatively few legal implications to a recognized common law marriage in Georgia, the existence of a common law marriage may have an impact on dealings with third parties. For example, suppose a person just announced his common law marriage last week, but his bank had no idea. If he goes to open a joint account for himself and his common law spouse, the bank may ask the spouse for proof of the common law marriage. If the spouse cannot prove the common law marriage, the bank may deny the joint account request.
There are relatively few implications of a recognized common law marriage in Georgia as they apply to the spouses themselves, so long as the common law marriage is entered into validly. The common law marriage will not impact property rights for the parties’ property unless a divorce action is filed, when the courts will divide all marital property, regardless of the title of the property. Upon separation, the presumption of common law marriage is that the marriage ended as soon as the parties signified their intent to end the relationship.
There is no inheritance right flowing to surviving spouses on the death of a common law spouse. The common law spouse would have to rely on the law of intestacy (Georgia law establishing who inherits if a decedent died without a will) or take some action to establish that the deceased spouse died with a valid common law marriage to the survivor. Otherwise, the common law spouse would not inherit from the estate, while a married spouse would be entitled to inherit 100% if the spouse was the only descendant of the decedent or one-half of the estate if there were descendants.
For more information about common law marriage in Georgia, consult an experienced family law attorney.
Alternatives to common law marriage in Georgia
Alternative options to common-law marriage in Georgia that many couples can utilize instead currently include cohabitation agreement preparation, which is a contract between two unmarried individuals that can specify what the terms of their relationship are, be it that of room-mates, a platonic friendship, or lovers. Cohabitation agreements differ from prenuptial agreements or cohabitation agreements in that they do not necessarily cover the qualification for divorce. They can also detail the division of property and financial matters if the relationship should eventually turn sour. These agreements can help if one person dies, as it can outline how all relevant matters will be handled between the two individuals.
There are other alternatives that do legally formalize a relationship without entering into a fundamental legal contract such as cohabitation. For example, many firms offer domestic partner benefits which cover gay and straight couples . Some companies offer these plans, which they advertise as being like this of a married couple. Domestic partnership benefits may even be available in some states for those working at the federal or state level.
Domestic partnership benefits can cover health care and insurance along with retirement plans, although if you work outside of Georgia, then you will have to file your Pennsylvania domestic partner paperwork in Pennsylvania. A "Certificate of Domestic Partnership" (CDP) – which identifies the holder as such – can be obtained by couples who apply jointly with their partner. An organization, a municipality, or a county that provides domestic partnership benefits will often issue a CDP. There is no requirement for this under Georgia law. Although some benefits may be available, this is still not the same as an official legal status as that is beyond domestic partnership benefits.
How to act in case you assume you have a common-law marriage
If you think you may have entered into a common law marriage in Georgia, either before or after the 1997 law change, you should take the following steps:
- Consult with a knowledgeable family law attorney as to the specific circumstances that existed which you believe created a common law marriage.
- If you are no longer living with the other person and you have not filed a divorce proceeding, then based on the circumstances of your relationship you may need to file a divorce proceeding in order to obtain a court’s ruling as to the existence of the common law marriage.
- If you are still living with the other person and you believe you have entered into a common law marriage, and you want to remain married, consult with a family law attorney as to whether the best course of action is to obtain a signed and notarized certificate of marriage (which will have no binding effect on the state), or whether the better choice is to enter into a ceremonial marriage under Georgia law (with the state recognizing the validity of that marriage); this choice will be influenced by how the parties have conducted themselves, the length of time they have resided together, the wishes of other persons with interests who may have an ownership claim to property that has been purchased or is otherwise held by either party, the tax consequences and, perhaps most importantly, the wishes of the parties as to whether they want an established legal relationship.
Georgia common law marriage FAQ
1. Is common law marriage automatic after a certain number of years?
NO, even if you live together for a substantial period of time, it does not automatically grant you a common law marriage unless the other elements above are met and there is a formal declaration of an intention to be married afterwards. However, if you meet all the requirements of a common law marriage and hold yourselves out to the community as being in a lawful marriage and do so for a substantial period of time, a presumption arises that a common law marriage exists.
2. What happens to your kids if you split up from your partner?
In a common law marriage, the same laws apply to children of common law marriages as apply to children of ceremonial marriages. Meaning , the court must determine the issue of child custody in accordance with the best interests of the children. The non-biological parent does not have any automatic custodial rights and must prove to the court that they have acted as a parent for a substantial time to establish equity.
3. Do common law couples or those attempting to enter into a common law relationship have any rights in taxes?
In short, yes. A common law spouse is entitled to the same tax rights as someone who has entered a ceremonial marriage.
4. If a couple chooses to split after living together as common law spouses, what then?
The same rights and obligations apply as for parties entering into a ceremonial marriage. Issues of child support, alimony, equitable division of the marital estate and other divorce-related issues must be decided at the time of separation.