What should I know about marriage?

Contents

• What is marriage?
• What are the requirements for marriage?
• Who can marry in Georgia?
• What kinds of marriages are there?
• What are prenuptial agreements?
• What are my legal rights and responsibilities in marriage in Georgia?

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What is marriage?

Marriage is a legally enforceable contract between two people promising to be spouses. How is being married different from living together? In Georgia, couples have no special legal rights unless they are married. 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.

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What are the requirements for marriage?

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

1. Be legally competent to contract marriage: The first requirement for a valid marriage is the ability of the parties to contract. To create a contract of marriage, the parties' consent must be voluntary and not under duress. No fraud can be practiced upon either one. Ordinarily, an adult can enter a contract. There are occasions, however, when an adult lacks the ability 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.

2. Agree to be spouses: Two persons must verbally agree to be spouses 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. 

3. Consummate 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. Sexual intercourse is not required to consummate a valid ceremonial marriage.

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Who can marry in Georgia?

• You are of "sound mind"; you are mentally able to decide whether or not you want to marry someone

• You are not married to someone else

• You are not closely related, by blood or marriage, to the person you intend to marry

• You are at least 18 years old; if you are 17 years old, you can marry with parental consent

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What kinds of marriages are there?

• 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 performed, 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.  Laws on marriage and marriage licenses vary from state to state. 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. In Georgia, marriage licenses are issued by judges of the probate courts.
• Common Law Marriage: A common law marriage is a marriage formed without a formal ceremony. It is created without a marriage license. Although formerly recognized in Georgia, as of January 1, 1997, new common law marriages cannot be created in Georgia. However, if you created a common law marriage in Georgia before January 1, 1997, your marriage is still valid. If (before January 1, 1997) you and your partner 1) had the ability to marry 2) intended to marry and 3) behaved as if you were married, then you could have a common law marriage. 

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What are prenuptial agreements?

Couples sometimes make prenuptial agreements before they get married. Such agreements settle the rights each will have if they get divorced. Prenuptial agreements have been available in Georgia since 1982. Judges use three guidelines to decide whether to enforce a prenuptial agreement. A judge must consider the following questions:

1. Was the agreement obtained through fraud, duress, or mistake? Were important facts regarding the financial condition of the parties not disclosed or misrepresented?

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. 

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What are my legal rights and responsibilities in marriage in Georgia?

What are my legal rights and responsibilities as a couple?

A marriage creates certain legal rights and duties between two people upon being married.

• Either spouse has the right to give up his or her own last name and take that of the other. A partner can keep his or her own last name, or a partner can use both last names with a hyphen.

• Generally, a couple cannot sue each other 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 or child.

• Spouses have rights to inherit from each other if one spouse dies without a will. If divorced, spouses may have rights to alimony from each other. Each also has a right to an equitable division of the property accumulated during the marriage.

What are my legal rights and responsibilities as an individual?

Each spouse is an individual able to assume legal rights and duties. Therefore, each can enter into contracts 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.

What is my right not to be abused?

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. This means 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.

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Contents

• What happens if any of the requirements for marriage are not met?
• Can a married person marry again without a divorce?
• Can I marry someone who is closely blood related to me?

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What happens if any of the requirements for marriage are not met?

A marriage in which one party was tricked or defrauded may be voided (or set aside) by court action. 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. 

Although not true of contracts generally, marriage 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.

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Can a married person marry again without a divorce?

A married person who marries again without a divorce is guilty of bigamy, which is a crime. If the new spouse knows about the bigamy, he or she is also guilty of the crime of marrying a bigamist. 

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Can I marry someone who is closely blood related to me?

The law forbids you to marry your children, step-children, siblings, aunts or uncles, nieces or nephews, parents, or grandparents. If you marry (or have sexual relations) with anyone within these prohibited degrees, you commit incest and may be criminally prosecuted. 

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