Does a Common Law Marriage Require a Divorce?

In the past, a man and woman could be considered married, even if they had not gone through a wedding or a civil ceremony. Though the criteria depended on the laws within the couple’s home state, generally speaking, the requirements for a common law marriage included:

  1. The couple must live together for a designated period of time
  2. The couple must act as though they were married and refer to each other as husband and wife
  3. A consummation of the common law marriage must have occurred

The purpose of this alternative marriage, like many family law rules, was mostly to protect children from being considered ‘illegitimate.’ As the law modernized to protect the rights of children born to unwed parents, the social stigma of illegitimacy lessened. Thus, the need for common law marriage dissipated. Nevertheless, a common law marriage is still a binding marriage that requires a divorce to officially end the relationship.

How to End a Common Law Marriage in Georgia

Georgia, like most other states, has done away with the legal concept of common law marriage almost entirely. This is codified in Georgia Code Section 19-3-1.1. Basically, no common law marriage in the state can have begun after Jan. 1, 1997. People engaged in a common law marriage that predates this statute will still be recognized as being legally married. To end this marriage, the couple must undergo a divorce. If a Georgia couple began cohabiting after the end of 1996, they will not be considered legally married without having completed the legal process of civil marriage, no matter how long they have lived together or if they call each other “husband” or “wife.”

Georgia does acknowledge common law marriages that occurred in other states. The states that currently allow at least some form of common law marriages include:

  • Colorado
  • District of Columbia
  • Idaho
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

If a union qualified as a common law marriage in any of the above states and the couple later move to Georgia, divorce proceedings are necessary to end the marriage.

It should be noted, of course, that simply because a couple isn’t considered legally married, doesn’t mean that some family law rules will not apply to them, especially if they have children together. The issues of child support and custody cannot be avoided simply because the parents are not married.

If you have questions regarding your rights as an unmarried parent or if you are ending a relationship that had qualified as a common law marriage, contact our family law attorneys at 770-887-1209 now.