O.C.G.A. § 19-3-5 (2019)

Annotations

Law reviews. For article, “Annulment of Marriage in Georgia,” see 5 Ga. B.J. 22 (1942).

For article, “Georgia Inheritance Rights of Children Born Out of Wedlock,” see 23 Ga. St. B.J. 28 (1986). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986).

JUDICIAL DECISIONS Legislative intent as to applicability. - In the use of the word “marriages” in the law, dealing with “marriages of persons unable to contract,” it cannot be said that the legislature, in providing that the issue of such marriages before annulled will be legitimate, intended it to apply only to ceremonial marriages. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226, 1951 Ga. LEXIS 339 (1951). Legislature intended to remove stigma of bastardy from children if their parents go through marriage ceremony, even though the marriage is void because one of the parties was unable to contract marriage by reason of an existing marriage. Brazziel v. Spivey, 219 Ga. 445, 133 S.E.2d 885, 1963 Ga. LEXIS 478 (1963).

“Marriage” construed. - Former Code 1933, § 53-101 (see now O.C.G.A. § 19-3-1) defined the essentials of a marriage, and this court repeatedly recognized common-law marriages as complying with these essentials. Former Code 1933, § 53-102 (see now O.C.G.A. § 193-2) specified those persons who were able to contract a marriage, and listed as one of the disabilities to contract a marriage, a previous marriage undissolved. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226, 1951 Ga. LEXIS 339 (1951). Marriages of persons unable to contract marriage are void. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818, 1944 Ga. LEXIS 425 (1944). Contract of marriage entered into by insane person is void. Johnson v.

Johnson, 172 Ga. 273, 157 S.E. 689, 1931 Ga. LEXIS 73 (1931). Party to previous undissolved marriage cannot contract marriage and marriage by such person is void. 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. A marriage contract involving such a party is void. Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402, 1947 Ga. LEXIS 331 (1947). Attempted bigamous marriage is void and may be disregarded without being decreed void by a judgment of court. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226, 1951 Ga. LEXIS 339 (1951). Previous undissolved marriage renders void an attempted second marriage. Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360, 1968 Ga. LEXIS 695 (1968). When a man having a living wife enters into a ceremonial marriage to another woman, such purported second marriage is void. Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316, 1980 Ga. App. LEXIS 2027 (1980). 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). This state has abandoned commonlaw rule that made children of void marriage illegitimate, and adopted the civil law rule that the issue of certain void marriages, before they were annulled, were to be considered legitimate. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24, 1975 Ga. App. LEXIS 2243 (1975). Children born before marriage declared void. - Until marriages are declared void by competent court, children of such marriages are legitimate. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818, 1944 Ga. LEXIS 425 (1944). If the parents participated in a marriage ceremony, even though the marriage might ultimately be void, children born before the marriage was annulled or de-

clared void were legitimate. Hall v. Coleman, 242 Ga. App. 576, 530 S.E.2d 485, 2000 Ga. App. LEXIS 266 (2000), cert. denied, No. S00C1140, 2000 Ga. LEXIS 711 (Ga. Sept. 29, 2000). Issue of bigamous marriage, born before the marriage is annulled and declared void by a competent court are legitimate. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805, 1946 Ga. LEXIS 358 (1946). When party to marriage prosecuted for bigamy. - Although a party to a bigamous marriage is convicted of the offense of bigamy, the issue of such second marriage, born before the commencement of any prosecution for bigamy shall, notwithstanding the invalidity of such marriage, be considered as legitimate. Perkins v. Levy, 158 Ga. 896, 124 S.E. 799, 1924 Ga. LEXIS 365 (1924); Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805, 1946 Ga. LEXIS 358 (1946). When there are two ceremonial marriages and the second is void because the man had previously married and was undivorced, the children of the purported second marriage are legitimate if the second marriage has not been declared void and when the children were born before the commencement of a prosecution for bigamy. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24, 1975 Ga. App. LEXIS 2243 (1975). Children of bigamous marriage may be lawful heirs of deceased parent. - Child of a bigamous common-law marriage, born before such marriage was annulled or declared void by a court, is legitimate and is the lawful heir of the child’s deceased father. Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226, 1951 Ga. LEXIS 339 (1951). Policy codified did not legitimate offspring of illicit relationship. This declared policy was applicable only to those situations, broadly defined in the Code, when a marriage contract had been undertaken, but was void or voidable because of the legal inability of one of the parties to make a valid contract. Hobby v. Burke, 227 F.2d 932, 1955 U.S. App. LEXIS 3281 (5th Cir. 1955). Illegitimate offspring. - If no marriage, either ceremonial or common law,

ever took place, offspring are illegitimate. Hobby v. Burke, 227 F.2d 932, 1955 U.S. App. LEXIS 3281 (5th Cir. 1955). Void marriage may ripen into valid marriage. - While ceremonial marriage may be void at inception, it may under given circumstances ripen into a valid marriage. Beebe v. Beebe, 227 Ga. 248, 179 S.E.2d 758, 1971 Ga. LEXIS 659 (1971). No children from 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). Continued cohabitation after removal of impediment renders marriage valid. - If the parties cohabited as husband and wife from the time of the ceremonial marriage, and so continued after the husband’s disabilities were removed, they will be considered as lawfully married. Hawkins v. Hawkins, 166 Ga. 153, 142 S.E. 684, 1928 Ga. LEXIS 239 (1928). When parties enter into a ceremonial marriage which is not valid because of the incapacity of one of them, unknown to the other, but the impediment is later removed, their continued cohabitation thereafter as husband and wife is sufficient to create the presumption of a valid common-law marriage, nothing further appearing. Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316, 1980 Ga. App. LEXIS 2027 (1980).

Marriage of boy under 17 (now 16), may be ratified and confirmed by continuing, after arriving at the age of 17 (now 16), to cohabit with his wife as such. Smith v. Smith, 84 Ga. 440, 11 S.E. 496, 1889 Ga. LEXIS 281 (1889); Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675, 1918 Ga. LEXIS 471 (1918); Jones v. Jones, 200 Ga. 571, 37 S.E.2d 711, 1946 Ga. LEXIS 299 (1946). Marriage by female under 14 (now 16) may be ratified by her after she has reached the age of 17. Powers v. Powers, 138 Ga. 65, 74 S.E. 759, 1912 Ga. LEXIS 189 (1912); Dunson v. State, 25 Ga. App. 172, 102 S.E. 899, 1920 Ga. App. LEXIS 667 (1920). Party not subject to alimony when marriage void. - When at the time of purported marriage, and at the time of 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), the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether the father 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). When husband estopped to deny marriage in alimony actions. - In a suit by reputed wife for alimony, the husband is estopped from denying her competency to contract marriage if he has in fact married her, lived with her many years as his wife, and reared a family of children by her. Dillon v. Dillon, 60 Ga. 204, 1878 Ga. LEXIS 422 (1878); Bell v. Bennett, 73 Ga. 784, 1884 Ga. LEXIS 223 (1884).

RESEARCH REFERENCES Am. Jur. 2d. 52 Am. Jur. 2d, Marriage, §§ 16 et seq., 41 et seq., 54, 83, 84. Am. Jur. Pleading and Practice Forms. 1D Am. Jur. Pleading and Practice Forms, Annulment of Marriage, § 1 et seq.

C.J.S. 55 C.J.S., Marriage, §§ 11 et seq., 21, 30, 36 et seq. ALR. Legitimation by subsequent marriage annulled under a statute declaring that certain marriages shall be void from the

time their nullity is declared, 27 A.L.R. 1121. Validity of contract executed under duress exercised by third person, 62 A.L.R. 1477. Misrepresentation or mistake as to identity or condition in life of one of the parties as affecting validity of marriage, 75 A.L.R. 663. Right to attack validity of marriage after death of party thereto, 76 A.L.R. 769; 47 A.L.R.2d 1393. Continued cohabitation between parties to ceremonial marriage contracted when one of them was insane as creating presumption of common-law marriage, 85 A.L.R. 1302. Marriage to which consent of one of parties was obtained by duress as void or only voidable, 91 A.L.R. 414. 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.

Construction and application of statutes which in effect, under prescribed conditions, validate, after removal of impediment, marriage celebrated while a former spouse of one of the parties was living and undivorced, 95 A.L.R. 1292. Right to alimony, counsel fees, or suit money in case of invalid marriage, 110 A.L.R. 1283. Rights and remedies in respect of property accumulated by man and woman living together in illicit relations or under void marriage, 31 A.L.R.2d 1255. Validity of solemnized marriage as affected by absence of license required by statute, 61 A.L.R.2d 847. Liability of one putative spouse to other for wrongfully inducing entry into or cohabitation under illegal, void, or nonexistent marriage, 72 A.L.R.2d 956. Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.