Both Ceremonial Marriages and Common Law Marriages in the State of Georgia require three elements:
parties able to contract;
an actual contract; and
consummation according to law.
No marriage that is common law can be entered into in Georgia after January 1, 1997, but common law marriages entered into prior to January 1, 1997 will be recognized. O.C.G.A. § 19-3-1.1
Unlike traditional marriage, common law is created by the three mentioned essentials of marriage but, in addition, must be consummated by cohabitation. Cohabitation used in this sense generally implies marital intercourse. In this way, common law marriage is very similar to traditional marriage.
A common law marriage is not created if cohabitation is partial or periodic. Wright v. Goss, 229 Ga. App. 393 (1997).
Jury Charge for Common Law Marriage:
For a valid common law marriage to exist, three requirements must be met by a preponderance of the evidence. First, the parties in this common law case must have been able to contract as to marriage. If either party is unable to contract to marriage, there can be no traditional, or no common law marriage. This, as will the other requirements, is absolutely mandatory. Both participants must be of sound mind and able to make their own decision, so it may not be supposed that they were coerced into the marriage by their counterpart. Second, there must have been an actual contract of marriage between the parties. Evidence of an actual contract of common law marriage can be established by proof of general repute and statements of the parties themselves that they held themselves out as married. Finally, the common law marriage must have been consummated by the cohabitation of the parties. If all three requirements are established by a preponderance of the evidence by the Plaintiff to have existed simultaneously, then the Plaintiff is entitled to a divorce and the incidents of divorce, such as alimony and an equitable division of the parties’ marital property.
O.C.G.A. §19-3-1 & Brown v. Brown, 234 Ga. 300 (1975).
The party asserting a common law marriage must prove its existence by a preponderance of the evidence, and this is a question for the trier of fact.
A party seeking to prove a common law marriage founded on cohabitation must show every element necessary to the validity of a marriage by proving not only that the marriage was consummated, but also that the alleged spouse was single and possessed every other qualification for a valid marriage. Long v. Marino, 212 Ga. App. 113 (1994).
No. You have to proceed just as if it is a divorce from a ceremonial marriage, but examine whether both parties believe they were common law married, because if one party disputes the common law marriage then you will have to prove by a preponderance of the evidence that the common law marriage existed. As long as both parties agree, and you meet all the requirements set forth for a common law marriage including the consummation by cohabitation, the state will recognize you as married.
Why would anyone even want to claim a common law marriage. Common law marriage can benefit both parties in the following ways: if you can prove a common law marriage then you can argue for an equitable distribution of property and alimony, in addition employment benefits (such as insurance) that are given to an employee’s spouse, etc. A common law spouse is recognized by the state in the same sense as a traditional spouse.