Understanding divorce after a common law marriage

On Behalf of | Jan 30, 2022 | family law |

Many couples in Georgia and elsewhere want to be together, but not everyone wants to go through with a ceremony or license to become legally married. In fact, the thought of marriage may be the farthest thing from their minds when they decide to live together and set up a household.

The problem is, many people think that the longer they have lived together, the greater the likelihood that the courts will recognize it as a common-law marriage. This becomes an especially urgent concern for dividing assets if the couple separates.

The myth of the seven-year cohabitation

There is an assumption among many across the country that after a specific period of co-habitation, such as seven years, the courts will recognize the union as a common law marriage. In fact, only a handful of states even recognize common law marriage, and the couple must at least be eligible to be married and co-habit in a state that recognizes common law for it to be legal.

Unfortunately, when there is a split, the legitimacy of the union may come down to one person’s word over another. Even if all the required elements for such a union are present, if one side claims that they were never married to begin with, it will be up to the judge to decide, based on the evidence and witness testimony from friends and family, if the couple was living in a common law marriage.

As there is no such thing as common law divorce, the split will follow the same state laws regarding the division of marital assets, custody and support as for divorcing couples who were officially married. A common law marriage allows couples to share and pass on property, so without legitimacy, the split may place one of them in a disadvantaged position.

Georgia requirements for a common law marriage

Georgia no longer validates common law marriages, but will recognize them for the purposes of divorce or estate planning purposes if the couple was together prior to January 1, 1997, and the union had these required elements:

  • The parties were able to contract.
  • There was an actual contract.
  • There was a consummation by cohabitation according to law.

As long as both parties agree that they were in a common law marriage, the divorce may proceed as it would for a licensed marriage. For residents of Savannah, establishing that such a union existed is important when going through the split, especially concerning support and future benefits that a spouse would receive.