O.C.G.A. § 19-4-1 (2019)

Annotations

Law reviews. For article, “Annulment of Marriage in Georgia,” see 5 Ga. B.J. 22 (1942). For comment on Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546 (1965), see 3 Ga. St. B.J. 219 (1966).

For comment which compares this section with § 19-3-2, see 21 Mercer L. Rev. 465 (1970). For note, “Annulment in Georgia: A Product of Judicial Restraint and Legislative Confusion,” see 14 Ga. L. Rev. 81 (1979).

JUDICIAL DECISIONS Purpose of section. - Purpose of statute to uphold the interest and welfare of children is manifested in the provisions insuring their legitimacy, prohibiting annulment, and thus requiring divorce to dissolve such marriages. Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214, 1978 Ga. LEXIS 788 (1978). O.C.G.A. § 19-4-1 was promulgated for purpose of protecting children of an otherwise void marriage, in other words, this statute, by requiring parties to an otherwise void marriage to seek a divorce rather than an annulment, prevents those parties from bastardizing children which are a product of the marriage. Burnett v. Schweiker, 643 F.2d 1168, 1981 U.S. App. LEXIS 13687 (5th Cir. 1981). Section provides exception to common-law rule. - Georgia legislature, in promulgating O.C.G.A. § 19-4-1, carved

out an exception to the common-law rule that if one party to a marriage has a previous unresolved marriage, then that party is unable to contract a subsequent valid marriage, and the later marriage is void from the beginning. Burnett v. Schweiker, 643 F.2d 1168, 1981 U.S. App. LEXIS 13687 (5th Cir. 1981). Section does not render legitimate an otherwise void marriage. - In Georgia, a person who enters into a marriage that is void because of a legal impediment must seek a divorce in order to terminate the purported marriage; traditionally, a divorce proceeding seeks to terminate a valid marriage, thus it appears that O.C.G.A. § 19-4-1 confers validity upon an otherwise void marriage; but under closer scrutiny, that section does not render legitimate an otherwise void marriage. Burnett v. Schweiker, 643 F.2d

1168, 1981 U.S. App. LEXIS 13687 (5th Cir. 1981). Annulment statutes protect children of marriages previously considered void by prohibiting annulment and thus guaranteeing their legitimacy. Consistent with this purpose, the legislature provided that such marriage could be dissolved only by divorce. Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546, 1965 Ga. LEXIS 512 (1965) (For comment, see 3 Ga. St. B.J. 219 (1966)). Right to alimony lies as necessary concomitant remedy to fulfill the general design of this statute. Wallace v. Wallace, 221 Ga. 510, 145 S.E.2d 546, 1965 Ga. LEXIS 512 (1965); Riddle v. Riddle, 240 Ga. 515, 241 S.E.2d 214, 1978 Ga. LEXIS 788 (1978). Under Social Security Act, 42 U.S.C. § 416(h)(1)(A), state law determines whether a marriage is valid or not in order to determine family status for purposes of social security benefits. Burnett v. Schweiker, 643 F.2d 1168, 1981 U.S. App. LEXIS 13687 (5th Cir. 1981). Widows of such marriages not “legal” widows for social security purposes. - In enacting O.C.G.A. § 19-4-1, under which, if a child has been born or will be born of a marriage otherwise void because of legal impediment, the proper procedure for resolution of such marriage is to obtain a divorce rather than an annulment, the Georgia legislature did not intend to confer validity on such oth-

erwise void marriage; therefore, the widow of such void marriage is not the legal widow for purpose of receiving social security benefits. Burnett v. Schweiker, 643 F.2d 1168, 1981 U.S. App. LEXIS 13687 (5th Cir. 1981). Denial of social security benefits to spouses of void marriages. - O.C.G.A. § 19-4-1 does not confer validity on an otherwise void marriage for purpose of permitting a spouse to such marriage to receive benefits that only inure to the husband or wife of the legal marriage; in other words, denying a spouse the ability to receive benefits as a legal widow does not cast doubt on the legitimacy of the child born of a void marriage. Furthermore, to permit such spouse to receive benefits intended to inure only to the benefit of a legal widow would wreak havoc on any scheme set up to protect a surviving spouse. Burnett v. Schweiker, 643 F.2d 1168, 1981 U.S. App. LEXIS 13687 (5th Cir. 1981). 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).

RESEARCH REFERENCES Am. Jur. 2d. 4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq. Am. Jur. Pleading and Practice Forms. 1C Am. Jur. Pleading and Practice Forms, Annulment of Marriage, § 1 et seq. C.J.S. 55 C.J.S., Marriage, § 46 et seq. ALR. Epilepsy as ground for avoiding marriage, 7 A.L.R. 1503; 31 A.L.R. 148. Right to annulment of marriage induced by false claim that husband was

cause of existing pregnancy, 11 A.L.R. 931; 19 A.L.R. 80. Meaning of “voluntary cohabitation” within statute relating to annulment of marriage, 26 A.L.R. 1068. Representation that proposed marriage could and would be dissolved by annulment or divorce as ground for annulment, 93 A.L.R. 705. Avoidance of procreation of children as ground for divorce or annulment of marriage, 4 A.L.R.2d 227. Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage of one, as

affecting right to annulment, 4 A.L.R.2d 542. What constitutes duress sufficient to warrant divorce or annulment of marriage, 16 A.L.R.2d 1430. Refusal of sexual intercourse as ground for annulment, 28 A.L.R.2d 499. Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 A.L.R.2d 483. Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 A.L.R.3d 759. Concealment or misrepresentation relating to religion as ground for annulment, 44 A.L.R.3d 972. What constitutes mistake in the iden-

tity of one of the parties to warrant annulment of marriage, 50 A.L.R.3d 1295. Incapacity for sexual intercourse as ground for annulment, 52 A.L.R.3d 589. Spouse’s secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment, 66 A.L.R.3d 1282. Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846. Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.