O.C.G.A. § 19-3-2 (2019)

Annotations

Cross references. Bigamy and marrying a bigamist, §§ 16-6-20, 16-6-21. Law reviews. For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article advocating reamendment of this Code section to recognize the pre-

sumption favoring validity of subsequent marriages, see 21 Mercer L. Rev. 465 (1970). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 79 (2006). For article, “A Holy Secular Institution,” see 58 Emory L.J. 1123 (2009). For article, “Conflict of Laws Structure and Vision: Updating a Venerable Discipline,” see 31 Ga. St. U. L. Rev. 231 (2015).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION SOUND MIND AGE PREVIOUS UNDISCLOSED MARRIAGE General Consideration Law is more regardful of nuptial contracts, and persons incapable of contracting generally may contract marriage. Unlawful marriages are not void unless so declared. Park v. Barron, 20 Ga. 702, 1856 Ga. LEXIS 135 (1856). Presumption of capacity to contract marriage. - There is presumption that parties had capacity to contract marriage and this presumption prevails until overcome by proof. Fanning v. State, 46 Ga. App. 716, 169 S.E. 60, 1933 Ga. App. LEXIS 210 (1933). Requirements of section applicable to common-law marriage. - In order to be able to contract a valid common-law marriage, one must be able to meet the requirements of this statute. Hiter v. Shelp, 129 Ga. App. 401, 199 S.E.2d 832, 1973 Ga. App. LEXIS 1023 (1973). When the existence of a common-law marriage was raised as a defense to kidnapping, even though the trial court erred in failing to charge that defendant’s burden to prove the marriage was only to a preponderance of the evidence, the error was harmless since no evidence was cited to prove two of the elements as required by O.C.G.A. § 19-3-2. Dixon v. State, 217 Ga. App. 267, 456 S.E.2d 758, 1995 Ga. App. LEXIS 389 (1995). Circumstantial evidence proving divorce occurred. - Georgia Court of

Appeals held that while the divorce decree would be direct evidence of the dissolution of the marriage, any fact can be proven through circumstantial evidence. Dillard v. Schilke, 352 Ga. App. 158, 834 S.E.2d 278, 2019 Ga. App. LEXIS 545 (2019). Jury’s verdict finding that the defendant was the decedent’s lawful surviving spouse was upheld because the circumstantial evidence established that the decedent and the plaintiff legally divorced and that the decedent’s marriage to the defendant was valid. Dillard v. Schilke, 352 Ga. App. 158, 834 S.E.2d 278, 2019 Ga. App. LEXIS 545 (2019). Sound Mind Sound mind essential requirement. - It is essential to the validity of a marriage in this state that the parties should be of sound mind and marriages of persons unable to contract are void. Bell v. Bennett, 73 Ga. 784, 1884 Ga. LEXIS 223 (1884). For other cases, see 9 Enc. Dig. 189. Age Ratification of marriage contract upon majority. - Although this statute prescribed the consentable age of parties, if a party below the age marries, but after the party reaches the consentable age the party affirms the marriage, and there is

Previous Undisclosed Marriage

Age (Cont’d) cohabitation, the marriage will thereafter be valid and binding. Americus Gas & Elec. Co. v. Coleman, 16 Ga. App. 17, 84 S.E. 493, 1915 Ga. App. LEXIS 483 (1915). Marriage of a boy under 17 years of age, although declared by former Code 1933, § 53-104 (see now O.C.G.A. § 19-3-5) to be void, may nevertheless be ratified and confirmed by continuing, after arriving at the age of 17, to cohabit with his wife as such. Jones v. Jones, 200 Ga. 571, 37 S.E.2d 711, 1946 Ga. LEXIS 299 (1946). If a girl contracts a marriage which is invalid because she is under the age of consent, but, on arriving at this age, ratifies the marriage by continued cohabitation, the marriage is thereafter valid. Such marriages partake more of the nature of voidable than void marriages. They are imperfect marriages which the party may affirm or disaffirm after reaching the age of consent. The burden of proof is upon the person seeking to prove that the marriage was in fact ratified by continued cohabitation after the removal of the disability. Mims v. Hardware Mut. Cas. Co., 82 Ga. App. 210, 60 S.E.2d 501, 1950 Ga. App. LEXIS 1085 (1950). Underage party who contracts invalid marriage not subject to alimony claim. - When at the time of purported marriage, and at the time of an order granting alimony on the application of the wife for the support of their child, the partner was less than 17 years of age the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether he could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697, 1945 Ga. LEXIS 416 (1945). Alimony permissible if minor subsequently ratifies marriage. - Marriage of a boy under the age specified in law, though not absolutely void, being voidable only and subject to ratification, must yet be treated as void, so far as alimony is concerned, unless and until it is so ratified by him after reaching such age. Eskew v. Eskew, 199 Ga. 513, 34 S.E.2d 697, 1945 Ga. LEXIS 416 (1945).

Party to previous undissolved marriage is unable to contract marriage. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805, 1946 Ga. LEXIS 358 (1946). Previous undissolved marriage of one of the parties to a marriage ceremony renders such party incapable of making a marriage contract. Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402, 1947 Ga. LEXIS 331 (1947). One who has a prior undissolved marriage does not have legal capacity to contract marriage. Kicklighter v. Kicklighter, 217 Ga. 54, 121 S.E.2d 122, 1961 Ga. LEXIS 373 (1961); Murry v. Lett, 222 Ga. 67, 148 S.E.2d 412, 1966 Ga. LEXIS 399 (1966). Previous undissolved marriage renders attempted second marriage void. Graves v. Carter, 207 Ga. 308, 61 S.E.2d 282, 1950 Ga. LEXIS 458 (1950); Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360, 1968 Ga. LEXIS 695 (1968). When a woman having a living husband married another man, or a husband having a living wife and married another woman, the second marriage is void. Murchison v. Green, 128 Ga. 339, 57 S.E. 709, 1907 Ga. LEXIS 95 (1907); Curlew v. Jones, 146 Ga. 367, 91 S.E. 115, 1917 Ga. LEXIS 312 (1917). Marriage ceremony accompanied by cohabitation between a man and a woman, when one of them has a living wife or husband, is an absolute nullity, and may be so treated by the parties. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110, 1929 Ga. App. LEXIS 590 (1929). Bigamous marriage, being void, is a nullity, and no decree is necessary to avoid the marriage. The marriage may be treated as an absolute nullity by the parties to such a ceremony and by all the world. Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168, 1942 Ga. App. LEXIS 272 (1942). Attempted bigamous marriage is utterly void, and may be disregarded without ever being decreed void by a judgment of a court. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184, 1946 Ga. LEXIS 388 (1946).

Knowledge of former marriage by innocent party to second marriage is not requisite to render void the second marriage. Clark v. Cassidy, 62 Ga. 407, 1879 Ga. LEXIS 544 (1879); Belle Isle v. Belle Isle, 47 Ga. App. 168, 170 S.E. 211, 1933 Ga. App. LEXIS 330 (1933). When marriage has been proved, relation is presumed to exist until evidence of marriage’s dissolution by divorce or death, and the party asserting the dissolution must prove the dissolution. Clark v. Cassidy, 62 Ga. 407, 1879 Ga. LEXIS 544 (1879); Belle Isle v. Belle Isle, 47 Ga. App. 168, 170 S.E. 211, 1933 Ga. App. LEXIS 330 (1933). Subsequent marriage does not create presumption of dissolution of first marriage. Uddyback v. Johnson, 149 Ga. App. 769, 256 S.E.2d 29, 1979 Ga. App. LEXIS 2023, 1979 Ga. App. LEXIS 3108 (1979). When there is proof that one party has living spouse, there is no presumption that divorce was granted dissolving the former marriage. Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70, 1959 Ga. App. LEXIS 887 (1959). Presumption of validity of second marriage is strong, and burden is upon one attacking said marriage to overcome the presumption by clear, distinct, positive, and satisfactory proof. Jones v. Transamerica Ins. Co., 154 Ga. App. 408, 268 S.E.2d 444, 1980 Ga. App. LEXIS 2199 (1980), overruled, Glover v. Glover, 172 Ga. App. 278, 322 S.E.2d 755, 1984 Ga. App. LEXIS 2483 (1984). Presumption arose that second marriage was valid until evidence was adduced that first spouse is living, and only then does the law place the burden on the party contending that the second marriage was valid to go forward with the evidence and show that the first marriage was dissolved by divorce. American Mut. Liab. Ins. Co. v. Copeland, 113 Ga. App. 707, 149 S.E.2d 402, 1966 Ga. App. LEXIS 1181 (1966); Patrick v. Simon, 237 Ga. 742, 229 S.E.2d 746, 1976 Ga. LEXIS 1374 (1976); Kelly v. Kelly, 144 Ga. App. 43, 240 S.E.2d 312, 1977 Ga. App. LEXIS 2578 (1977); Glover v. Glover, 172 Ga. App. 278, 322 S.E.2d 755, 1984 Ga. App. LEXIS 2483 (1984). When establishing dissolution of former marriage required. - It is only

when there is evidence of a living spouse that rule requiring affirmative establishment of dissolution of previous marriage comes into play. Zurich Ins. Co. v. Craft, 103 Ga. App. 889, 120 S.E.2d 922, 1961 Ga. App. LEXIS 1082 (1961). Burden of proof, once former marriage is shown, is on party asserting dissolution. Good faith or ignorance of the parties to the second marriage as to the true facts does not change the rule. New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273, 1959 Ga. App. LEXIS 697 (1959). Third party may legally marry party to bigamous marriage not otherwise incapacitated. - When a single man laboring under no disability married a woman who had theretofore knowingly been a party to a bigamous marriage, but was not otherwise incapacitated, his marriage to her was legal and, so long as it was not dissolved, constituted an impediment against another marriage by him. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110, 1929 Ga. App. LEXIS 590 (1929). To void bigamous marriage, a party may later marry when no other impediment exists. - The fact that a woman otherwise capable of contracting marriage entered into a marriage ceremony with a man who, to her knowledge, had a living wife from whom he was not divorced, would not render her incapable of later contracting marriage with another man, and this she could do without any judgment or decree annulling the previous marriage. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483, 150 S.E. 110, 1929 Ga. App. LEXIS 590 (1929). Common-law wife could not invoke marital privilege against testimony when previous existing marriage shown. - When witness testified that prior to the time she lived with the defendant as his common-law wife, she was married to another person who was still living and from whom she had not been divorced, the witness was not entitled to the marital privilege of refusing to testify as the previous marriage was not presumed to have been dissolved. Gates v. State, 120 Ga. App. 518, 171 S.E.2d 375, 1969 Ga. App. LEXIS 842 (1969). Bigamous marriage may become lawful on death of first spouse. - If a

Previous Undisclosed Marriage (Cont’d) man who had a living wife undivorced entered into a ceremonial marriage with another woman who was not shown to have known of the former marriage, and they cohabited as husband and wife from the time of such marriage and continued to do so after the death of the first wife, they will be considered thereafter as lawfully married. Hamilton v. Bell, 161 Ga. 739, 132 S.E. 83, 1926 Ga. LEXIS 329 (1926). Validity of marriage challenged through estoppel. - Georgia does not allow validity of a marriage to be chal-

lenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402, 1983 U.S. Dist. LEXIS 19620 (N.D. Ga.), aff’d, 723 F.2d 918, 1983 U.S. App. LEXIS 14392 (11th Cir. 1983). Setting aside divorce decree when marriage void from inception. - Trial court erred by denying an ex-husband’s motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage’s inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594, 2013 Ga. LEXIS 153 (2013).

OPINIONS OF THE ATTORNEY GENERAL Former Code 1933, § 53-107 (see now O.C.G.A. § 19-3-36) took precedence over former Code 1933, § 53102 (see now O.C.G.A. § 19-3-2) insofar as a conflict existed between the two statutes; when documentary proof of an applicant’s age was required only a birth or baptismal certificate will suffice. 1975 Op. Att’y Gen. No. U75-5. Marriage performed before final divorce decree issues as to one of parties is void. 1954-56 Ga. Op. Att’y Gen. 150. Marriage between first cousins not being prohibited by former Code 1933, § 53-105 (see now O.C.G.A. § 19-3-3), such marriage was legal and proper in this state. 1965-66 Op. Att’y Gen. No. 65-107.

Person who has been declared incompetent cannot enter into valid marriage, whether the marriage is performed by a minister or arises by declaration through common-law cohabitation; only a court can adjudicate the existence of a marital relationship in a specific case based on a set of particular circumstances. 1965-66 Op. Att’y Gen. No. 66-69. Physician’s certificate is not required to be in affidavit form; the law only contemplates that a physician’s certificate be presented, and that the certificate bear the signature of the physician; thus, any reasonable form of certification by the physician would appear to suffice. 1963-65 Ga. Op. Att’y Gen. 771.

RESEARCH REFERENCES Am. Jur. 2d. 52 Am. Jur. 2d, Marriage, §§ 16 et seq., 38. Am. Jur. Pleading and Practice Forms. 1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, §§ 2, 18, 27 et seq., 36, 59. C.J.S. 55 C.J.S., Marriage, §§ 10 et seq., 16, 17, 24. ALR. Mental capacity to marry, 28 A.L.R. 635; 82 A.L.R.2d 1040.

Incompetency to marry because of other marital relations as affecting breach of promise, 47 A.L.R. 400. Right of heir, next of kin, or other person interested in decedent’s estate to attack his marriage on ground of his mental incompetency, 57 A.L.R. 131. Right to attack validity of marriage after death of party thereto, 76 A.L.R. 769; 47 A.L.R.2d 1393. Validity of marriage celebrated while spouse by former marriage of one of the parties was living and undivorced, in reliance upon presumption from lapse of time

of death of such spouse, 93 A.L.R. 345; 144 A.L.R. 747. Ratification of marriage by one under age, upon attaining marriageable age, 159 A.L.R. 104. Presumption as to validity of second marriage, 14 A.L.R.2d 7. Right to attack validity of marriage after death of party thereto, 47 A.L.R.2d 1393. Acts in connection with marriage of

infant below marriageable age as contributing to delinquency, 68 A.L.R.2d 745. Conflict of laws as to validity of marriage attacked because of nonage, 71 A.L.R.2d 687. Marriage between persons of the same sex, 81 A.L.R.5th 1. Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.