Consummation of marriage according to law refers to two people carrying out or acting upon their agreement to marry. Consummation according to law is one of the three necessary elements in the formation of a valid marriage. In Georgia, a valid marriage is fulfilled by the following three elements: parties able to contract, an actual contract, and consummation according to law. O.C.G.A. 19-3-1. All three elements must coexist simultaneously, so you and your partner must have a capacity to marry, must have a present intent to marry, and must consummate their agreement to marry.
Consummation according to the legal definition can be accomplished differently between a ceremonial and common-law marriage. For a ceremonial marriage, consummation is satisfied by: (a) obtaining a license to marry and the performance of a ceremony by a person authorized to join persons in matrimony, or (b) by an actual agreement, in words of present tense, to be a married couple with intention of assuming such relationship. For a common-law marriage, courts use differing terms in describing consummation in this context, but they rely on the fact that the two people are actually living together and openly holding themselves out as being married, and that their family, friends, neighbors are viewing the two as a married couple.
Although the state of Georgia does not recognize common-law marriage entered into after January 1, 1997, the state continues to recognize “[o]otherwise valid common-law marriage entered into prior to January 1, 1997.” O.C.G.A. 19-3-1.1. Georgia state will also recognize a common law marriage that was properly created in another state that permits such marriages. Moreover, circumstantial evidence such as the parties lived together and acquired a general reputation as a married couple can be used for the purpose of proving the fact of a marriage notwithstanding ceremonial or common-law. Therefore, whether two people acted in furtherance of their marriage agreement to support the finding that a valid common-law marriage exists or that a existing ceremonial marriage is valid.
Courts rely on the facts and circumstances to establish the existence of a valid common-law marriage entered into prior to January 1, 1997
When an alleged marriage is unlicensed and non-ceremonial, the burden is on the person asserting the existence of a common-law marriage to prove that such marriage exists. Frazier v. State, 219 Ga. App. 768, 770 (1995). The preponderance of the evidence standard applies. Id. As mentioned above, for a common-law marriage to be valid, there must be two people who are capable of entering a contract, an actual contract to marry, and conduct and other evidence that the two carried out (i.e., consummated) their contract to marry.
In Georgia, cohabitation and reputation are treated an essential factor in establishing a common-law marriage. The fact that two people are actually living together in the same place, openly holding themselves out as being married, and that their family, friends, neighbors are viewing the two as a married couple are important. It is also important that such marital relationship is not “partial or periodic” for the purpose of proving common-law marriage. The courts are unlikely to find a common-law marriage where two people live together as a married couple only periodically, or where they inconsistently hold out as married in one circumstance and maintaining a non-marital status in other circumstances. Baynes v. Baynes, 219 Ga. App. 848 (1996).
Consummation does not only mean cohabitation or reputation. Courts will also look to parties’ public statements on public and official documents and records acknowledging their marital status (such as tax returns, deeds, wills and other formal instruments), their sexual relations, and whether the parties have children together. If the legitimacy of a child is involved, the court is likely to put more emphasis on serving its purpose of legitimizing the child of that relationship. Wilson v. Willard, 183 Ga. App. 204, 206 (1987).
Courts will follow the law of another state that permits a common-law marriage and recognize a common-law marriage properly created in such state
O.C.G.A 19-3-43 requires all marriages established under the laws of another state to have the same legal consequences and effect as a valid marriages occurred in Georgia. If the validity of such marriages is disputed, the court will consider the law of the place where the marriage agreement was made. Although Georgia no longer recognizes common-law marriages created after the 1997, there are still some states where the right of common-law marriage continues to exist. Other states have revoked the right either entirely or partially. States that do recognize a common-law marriage include the following: Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas and Utah. A few of the following states, including Georgia, do not generally recognize common-law marriages but permit common-law marriages under certain circumstances: Georgia (if created prior to 1997), Idaho (if created before 1996), New Hampshire (for inheritance purposes only), Ohio (if created prior to 10/1991), and Pennsylvania (if created before 9/2003).
If two people get married in one of the states that fully permits a common-law marriage, courts in Georgia will be required to recognize the marriage under O.C.G.A 19-3-43, and the validity of the marriage will be determined under the law of that state. For example, in Norman v. Ault, 287 Ga. 324 (2010), the court considered the law of Alabama with respect to common-law marriage. Alabama law expressly requires “the public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.” The court in this case found for the existence of a common-law marriage (affirmed the trial court’s ruling) based on the evidence that the parties lived in the same house sharing a bedroom and doing housework (cohabitation), told people that the other was his or her spouse, had sexual relations only with each other, and man executed a deed conveying property to his “Wife”.
Courts will admit circumstantial evidence to prove that there was a ceremonial marriage
To prove that there is a valid ceremonial marriage, the court may rely on both directly and circumstantial evidence. Direct evidence includes a properly authenticated marriage certificate, record or register, or copy or transcript. Circumstantial evidence such as evidence of cohabitation and reputation may be used together with direct evidence as proof of marriage, although providing only the circumstantial evidence without the direct evidence will strongly militate against the circumstantial evidence provided. Evidence of cohabitation and reputation as a married couple is usually admissible for the purpose of proving the fact of marriage. Courts take into consideration whether the parties’ live together in the same place as husband and wife, statements by family members about the marriage, family reputation as to marriage, and statements by the parties as to others about their marital status. In addition, courts consider other facts and circumstances as circumstantial evidence such as whether a child was born within the relationship. Sexual intercourse is not required to consummate a valid ceremonial marriage.
Should divorce become necessary
If your marriage is believed to be valid and you are facing divorce, call us at 770-609-1247 to speak with one of our experienced divorce and family law attorneys. Our main office is located in Alpharetta, Georgia, but we have office located throughout the Atlanta-Metro Area. We hand cases through out the Alpharetta and Greater-Atlanta-Metro area.
Updated: 2017-10-10
