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Basic Marriage and Divorce Law: Getting Married

Authored By: Carl Vinson Institute
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BASIC MARRIAGE AND DIVORCE LAW: GETTING MARRIED


This document tells you the following:

  • What is marriage?
  • What are the requirements for marriage?
  • What kinds of marriages are there?
  • What are prenuptial agreements?
  • What are the legal rights and duties of marriage?
  • How does marriage affect each spouse as an individual?
  • What is the right not to be abused?

MARRIAGE

This document with the legal relationship between husbands and wives. Some of the laws affecting marriage and family life are very old. Some are very new. Like other laws, they reflect changing patterns and values in our society.

GETTING MARRIED

How is being married different from living together? Marriage is a legally enforceable contract between two people promising to be spouses. Two people who live together may agree to split the cost of food. They may even purchase property together. However, in Georgia, they have no special legal rights unless they are married.

In Georgia, to have a valid marriage, the two people must:

• be legally competent to contract marriage.

• agree to be spouses.

• consummate the marriage (according to the legal definition).

REQUIREMENTS FOR MARRIAGE

Who Is Legally Competent to Marry?

Some people are not allowed, by law, to marry. For example, in Georgia, a person must be mentally competent to marry, meaning he or she must be capable of understanding the idea of marriage. Also, a person who is already married to someone else cannot legally marry. In Georgia and elsewhere, a married person who marries again without a divorce is guilty of bigamy, a crime. If the new spouse knows about the bigamy, he or she is guilty of the crime of marrying a bigamist. 

Two people who are closely related by blood or marriage cannot marry. For example, the law forbids a man to marry his daughter, his stepdaughter, his sister, his aunt, his niece, his mother, or his grandmother. Likewise, a woman cannot marry her corresponding relatives.

These relationships within which marriage is forbidden are known as the degrees of consanguinity. They are set forth in the Official Code of Georgia Annotated §19-3-3. Laws on incest are a direct result of these degrees. If you marry (or have sexual relations) with anyone within these prohibited degrees, you commit incest and may be criminally prosecuted.

Governments also set minimum ages for a legal marriage.

To marry in Georgia, you must be at least 16 years old. If you are under the age of 18, you cannot get a marriage license without parental consent. Persons under the age of 16 may marry if there is proof that the female is pregnant or that they are the parents of a living child. However, the county probate court is required to notify the parents of anyone under age 18 who is applying for a marriage license.

Ability to Contract Marriage

The first requirement for a valid marriage is the ability (or capacity) of the parties to contract. Ordinarily, an adult has the capacity to enter a contract. There are occasions, however, when an adult lacks the capacity necessary to enter the marriage contract. For example, if an adult has been declared incompetent by a court, he or she lacks the capacity to contract. A married person also lacks the capacity to enter a (second) contract of marriage.

The Marriage Contract

Another requirement for a valid marriage is that the two persons verbally agree to be husband and wife at the present time. There is no legal marriage if the persons agree to be married in the future. The agreement to marry can be a spoken one. What of the agreements in the following situations? Would the marriages be valid?

Georgia law says that to create a contract of marriage, the parties' consent must be voluntary. No fraud can be practiced upon either one. A marriage in which one party was tricked or defrauded may be voided (or set aside) by court action. Mildred (situation 1) may be able to get the marriage voided because Sam "tricked" her into it by getting her drunk. Similarly, duress that prevents voluntary consent may allow one of the parties (the victim of duress) to set aside the marriage. Duress is any unlawful threat to make another person do something against his or her will. A threat at gunpoint is an example of duress.

Although not true of contracts generally, a marriage contract has been held valid even though it was made in jest. The courts' view has been that there is no way to prove objectively that the parties were acting in a "spirit of fun and jest." 

Note that in a marriage ceremony the law's concern is with the basic agreement to marry. Promises-such as those to love, honor, and obey-are personal rather than legal commitments.

Consummating the Marriage

Consummation is the third requirement for a valid marriage. The legal definition varies according to the type of marriage. In a ceremonial marriage, consummation may be achieved by obtaining a license to marry and having a ceremony performed by an authorized person. Consummation may also be accomplished when the parties, using words of present tense, agree to marry-but only if they are in a state that recognizes what is called common law marriage. Sexual intercourse is not required to consummate a valid ceremonial marriage.

KINDS OF MARRIAGE

Ceremonial Marriage

Marriages begin with a formal marriage ceremony, which may be a religious ceremony or a civil ceremony performed by a judge. Before a formal marriage ceremony can be per-formed, the couple must get a marriage license. This license may be obtained from the courthouse in the county in which the marriage will take place or in any county, provided that one of the applicants is a state resident. If the marriage is to be performed in a state other than Georgia, the requirements of that state must be followed in order to have a valid marriage. Laws on marriage and marriage licenses vary from state to state. In Georgia, marriage licenses are issued by judges of the probate courts.

Before receiving the license, couples must take a blood test for certain diseases, including syphilis, sickle cell anemia, and rubella (or German measles). The blood tests can be given by the county board of health. Even with a formal ceremony, license, and blood test, however, a marriage is not valid unless the three requirements mentioned earlier are met.

Common Law Marriage

A common law marriage is a marriage formed without a formal ceremony. Although formerly recognized in Georgia, in 1996 the state legislature did away with this form of marriage. However, all of the states, including Georgia, recognize a common law marriage that was properly created in another state that permits such marriages. Furthermore, Georgia recognizes any common law marriage that was valid in Georgia prior to the enactment of the 1996 law.


BEING MARRIED

Prenuptial Agreements

Can any rights and duties be settled before marriage?

Couples sometimes make prenuptial agreements before they get married. Such agreements settle the rights each will have if they get divorced.

In 1982, the state supreme court said that prenuptial agreements would be recognized in Georgia. The court set up three guidelines for judges to use in deciding whether to enforce a prenuptial agreement. A judge is to consider the following questions:

1. Was the agreement obtained through fraud, duress, or mistake? Were -important facts regarding the financial conditions of the parties not disclosed or misrepre-sented?

2. Is the agreement unconscionable? In other words, is it so one-sided that one party will get a great deal and the other practically nothing?

3. Have the facts and circumstances changed since the agreement? Would it now be unfair or unreasonable?

If any of these conditions are true, the agreement might not be recognized. 

Legal Rights and Duties

A marriage creates certain legal rights and duties between two people. Some rights and duties occur right away. For example, upon being married, either spouse has the right in Georgia to give up his or her own surname (family name) and take that of the other. A partner can keep his or her own surname, or a partner can use both surnames with a hyphen.

Generally, a couple cannot sue each other in Georgia once they are married. Exceptions to this law cover special situations, including divorce, child support, legal separation, and abuse.

The couple may make use of a new tax status. 

Spouses cannot be forced to testify against each other in a criminal case, unless the crime (such as abuse) is against the person of a minor child.

In Georgia, spouses have rights to inherit from each other if one spouse dies intestate (that is, without a will).
If divorced, spouses may have rights to alimony (or payments of support) from each other. Each also has a right to an equitable division of the property accumulated together during the marriage.

Individual Responsibilities

Under Georgia law, each spouse is an individual able to assume legal rights and duties. Therefore, each can enter into contracts by him- or herself or together (individually or jointly). Each can sue others and be sued by others. Neither spouse is automatically responsible for the debts of the other. 

Creditors often protect themselves by requiring both spouses to sign credit card applications or leases. Such a requirement makes each spouse responsible for purchases or contracts made by each other.

The Right Not to Be Abused

The government favors and encourages the institution of marriage. It encourages marriages by interfering in them as little as possible. No laws specify proper marital behavior. No laws, for example, state how a couple should divide the household chores. No law states how many children a couple should have, if any.

However, Americans have pushed governments to "interfere" in one aspect of family life: violence to and between family members. Beginning in the 1970s, increased awareness about domestic violence or abuse of children, spouses, and (more recently) the elderly resulted in legal protection for these victims.
The need to protect these groups from abuse and neglect outweighs policies of not interfering in family life.

In 1981, the Georgia legislature established court relief for "family violence." It gave the superior court authority to act to protect victims. The Family Violence Act applies to family members, former spouses, foster families, and other persons living in the same household. It also protects persons who are parents of the same child (regardless of whether they were ever married). Those persons who formerly lived in the same household are also protected. The court can:

• direct a person to stop committing such acts.
• exclude the person committing the violence from the household.
• require the abusive party to provide alternative housing for a spouse and children.
• remove minor children temporarily from parental custody.
• award support for children and/or a spouse.

Another recognized offense against family members is sexual battery. A 1990 law defines this offense as the touching of another person's intimate body part(s) without that person's consent. It also prohibits this act within or outside the family.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at www.cviog.uga.edu or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Oct 15, 2018