Kessler on Common Law Marriage

Common Law Marriage FAQs     

What is a common law marriage?
A common law marriage simply means that the marriage was established without a license and ceremony.

Are common law marriages still legal in Georgia?
No, as of January 1, 1997. However, a common law marriage that was entered into prior to that date is valid and will be recognized.

How is a common law marriage established in Georgia?
For a couple who wants to show that they are considered common law married, they will need to show the following: • Cohabitation - the parties must have lived together; • Intent - the parties must have intended to be married and held themselves out as husband and wife; • Holding out - the parties must present themselves to others as a married couple (i.e. they referred of each other as “my husband” or “my wife,” used the same last name, or filed a joint tax return); • Single - neither party can be married to someone else.

Do we have to live together for a certain period of time to be “common law married”?
No. There is no defined time requirement for living together. The controlling factor is not time together, but the intentions of the parties.

Do I need to obtain a divorce if I am “common law married?”
Yes. Once a valid common law marriage is established, you are considered married. Accordingly, your marriage can only be terminated through a court decreed divorce. There is no such thing as a common law divorce; a common law marriage must be terminated by the courts like any other marriage.

What was the reason for recognizing common law marriages?
The justification for recognizing common law marriage was so that the children of such a union would not be considered illegitimate.

If I am considered common law married in another state which still recognizes common law marriages and I move to Georgia, will the state of Georgia recognize my marriage?
Yes. Despite Georgia’s requirements for marriage, the Full Faith and Credit provision of the U.S. Constitution requires Georgia to recognize as legal, marriages consummated in another state under that state’s laws even though the common law marriage would not be valid under Georgia law.

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