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).

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).

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).

Cited in Gibbs v. Brown, 68 Ga. 803 (1882); Crapps v. Smith, 9 Ga. App. 400, 71 S.E. 501 (1911); Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675 (1918); Bentley v. Bentley, 149 Ga. 707, 102 S.E. 21 (1920); Finney v. State, 51 Ga. App. 545, 181 S.E. 144 (1935); Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938); Smith v. State, 66 Ga. App. 669, 19 S.E.2d 168 (1942); Indian Springs Swimming Pool Corp. v. Maddox, 70 Ga. App. 842, 29 S.E.2d 724 (1944); Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944); Hickman v. State, 199 Ga. 805, 35 S.E.2d 461 (1945); Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946); Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947); Goza v. State, 91 Ga. App. 842, 87 S.E.2d 232 (1955); Hayes v. Hay, 92 Ga. App. 88, 88 S.E.2d 306 (1955); Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70 (1959); Hosley v. Ridley, 101 Ga. App. 752, 112 S.E.2d 304 (1959); Ganns v. Worrell, 216 Ga. 512, 117 S.E.2d 533 (1960); Bryant v. Bryant, 216 Ga. 762, 119 S.E.2d 573 (1961); Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965); Murry v. Lett, 222 Ga. 67, 148 S.E.2d 412 (1966); Wittke v. Horne's Enters., Inc., 118 Ga. App. 211, 162 S.E.2d 898 (1968); Smith v. Smith, 230 Ga. 616, 198 S.E.2d 307 (1973); Hiter v. Shelp, 129 Ga. App. 401, 199 S.E.2d 832 (1973); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214 (1978); Thompson v. Brown, 254 Ga. 191, 326 S.E.2d 733 (1985); Dismuke v. C & S Trust Co., 261 Ga. 525, 407 S.E.2d 739 (1991); Cornelius v. State, 213 Ga. App. 766, 445 S.E.2d 800 (1994); Singleton v. Wilburn, 262 Ga. App. 52, 584 S.E.2d 659 (2003); Singleton v. Wilburn, 262 Ga. App. 52, 584 S.E.2d 659 (2003).

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). For other cases, see 9 Enc. Dig. 189.

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 cohabitation, the marriage will thereafter be valid and binding. Americus Gas & Elec. Co. v. Coleman, 16 Ga. App. 17, 84 S.E. 493 (1915).

Marriage of a boy under 17 (now 16) 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 (now 16), to cohabit with his wife as such. Jones v. Jones, 200 Ga. 571, 37 S.E.2d 711 (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).

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 (now 16 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) (decided under former version of section specifying minimum age of 17 for marriage by a male).

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).

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).

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), criticized, Zurich Ins. Co. v. Craft, 103 Ga. App. 889, 120 S.E.2d 922 (1961).

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).

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).

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).

Bigamous marriage may become lawful on death of first spouse.

- If a 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).

Validity of marriage challenged through estoppel.

- Georgia does not allow validity of a marriage to be challenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402 (N.D. Ga.), aff'd, 723 F.2d 918 (11th Cir. 1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2160, 80 L. Ed. 2d 545 (1984).

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).

Am. Jur. 2d.

- 52 Am. Jur. 2d, Marriage, §§ 16 et seq., 38.

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.