BASIC MARRIAGE AND DIVORCE LAW: GETTING MARRIED

This document tells you the following:

• What is marriage?
• What are the requirements for marriage?
• What kinds of marriages are there?
• What are prenuptial agreements?
• What are the legal rights and duties of marriage?
• How does marriage affect each spouse as an individual?
• What is the right not to be abused?

MARRIAGE

This document with the legal relationship between husbands and wives. Some of the laws affecting marriage and family life are very old. Some are very new. Like other laws, they reflect changing patterns and values in our society.

GETTING MARRIED

A friend says to you, "Gene and I want to get married. Do you know what we have to do? What does the state of Georgia require?" Would you know how to answer?

How is being married different from living together? Marriage is a legally enforceable contract between two people promising to be husband and wife. Two people who live together may agree to split the cost of food. They may even purchase property together. However, in Georgia, they have no special legal rights unless they are married.

In Georgia, to have a valid marriage, the two people must

? be legally competent to contract marriage.

? agree to be husband and wife.

? consummate the marriage (according to the legal definition).

REQUIREMENTS FOR MARRIAGE

Who Is Legally Competent to Marry?

Could the following persons legally get married in Georgia?

a. Terry, whose divorce isn't final, to Wendy?
b. Tom to his widowed daughter-in-law, Judy?
c. Maria to her stepson, Jeff?
d. Ken and Susan, who are first cousins?
e. June, who is 16, to Bob, who is 17?

Some people are not allowed, by law, to marry. For example, in Georgia, a person must be mentally competent to marry, meaning he or she must be capable of understanding the idea of marriage. Also, a person who is already married to someone else cannot legally marry. In Georgia and elsewhere, a married person who marries again without a divorce is guilty of big-amy, a crime. If the new spouse knows about the bigamy, he or she is guilty of the crime of marry-ing a bigamist. Terry (in example a) couldn't marry Wendy until his divorce is final.

Two people who are closely related by blood or marriage cannot marry. For example, the law forbids a man to marry his daughter, his stepdaughter, his sister, his aunt, his niece, his mother, or his grandmother. Likewise, a woman cannot marry her corresponding relatives.

These relationships within which marriage is forbidden are known as the degrees of consanguinity. They are set forth in the Official Code of Georgia Annotated §19-3-3. Laws on incest are a direct result of these degrees. If you marry (or have sexual relations) with anyone within these prohibited degrees, you commit in-cest and may be criminally prosecuted.

In examples b and c, the couples could not marry. The couple in example d could marry. Georgia permits marriages between first cousins. Most states, however, do not permit such a marriage.
Governments also set minimum ages for a legal marriage.

To marry in Georgia, you must be at least 16 years old. If you are under the age of 18, you cannot get a marriage license without parental consent. June and Bob would need parental consent (example e). Persons under the age of 16 may marry if there is proof that the female is pregnant or that they are the parents of a living child. However, the county probate court is required to notify the parents of anyone under age 18 who is applying for a marriage license.

Ability to Contract Marriage

The first requirement for a valid marriage is the ability (or capacity) of the parties to contract. Ordinarily, an adult has the capacity to enter a contract. There are occasions, however, when an adult lacks the capacity necessary to enter the marriage contract. For example, if an adult has been declared incompetent by a court, he or she lacks the capacity to contract. A married person also lacks the capacity to enter a (second) contract of marriage.

The Marriage Contract

Another requirement for a valid marriage is that the two persons verbally agree to be husband and wife at the present time. There is no legal marriage if the persons agree to be married in the future. The agreement to marry can be a spoken one. What of the agreements in the following situations? Would the marriages be valid?

SITUATION 1 Sam gets Mildred so drunk that she goes through their marriage ceremony unaware of what is occurring.

SITUATION 2 Holly and Lester decide to get married for a joke?thinking they can quickly get out of it.

Georgia law says that to create a contract of marriage, the parties' consent must be voluntary. No fraud can be practiced upon either one. A marriage in which one party was tricked or defrauded may be voided (or set aside) by court action. Mildred (situation 1) may be able to get the marriage voided because Sam "tricked" her into it by getting her drunk. Similarly, duress that pre-vents voluntary consent may allow one of the parties (the victim of duress) to set aside the marriage. Duress is any unlawful threat to make another person do something against his or her will. A threat at gunpoint is an example of duress.

Although not true of contracts generally, a marriage contract has been held valid even though it was made in jest. The courts' view has been that there is no way to prove objectively that the parties were acting in a "spirit of fun and jest." How could witnesses know or testify to the parties' true feelings? For this reason, Holly and Lester (situation 2) would have to get a divorce to end their marriage.

Note that in a marriage ceremony the law's concern is with the basic agreement to marry. Promises?such as those to love, honor, and obey?are personal rather than legal commitments.

Consummating the Marriage

Consummation is the third requirement for a valid marriage. The legal definition varies according to the type of marriage. In a ceremonial marriage, consummation may be achieved by obtaining a license to marry and having a ceremony performed by an authorized person. Consummation may also be accomplished when the man and woman, using words of present tense, agree to marry?but only if they are in a state that recognizes what is called common law marriage. Sexual intercourse is not required to consummate a valid ceremonial marriage.

KINDS OF MARRIAGE

Ceremonial Marriage

Marriages begin with a formal marriage ceremony, which may be a religious ceremony or a civil ceremony performed by a judge. Before a formal marriage ceremony can be per-formed, the couple must get a marriage license. This license may be obtained from the courthouse in the county in which the marriage will take place or in any county, provided that one of the ap-plicants is a state resident. If the marriage is to be performed in a state other than Georgia, the requirements of that state must be followed in order to have a valid marriage. Laws on marriage and marriage licenses vary from state to state. In Georgia, marriage licenses are issued by judges of the probate courts.

Before receiving the license, couples must take a blood test for certain diseases, including syphilis, sickle cell anemia, and rubella (or German measles). The blood tests can be given by the county board of health. Even with a formal ceremony, license, and blood test, however, a marriage is not valid unless the three requirements mentioned earlier are met.

Common Law Marriage

A common law marriage is a marriage formed without a formal ceremony. Although formerly recognized in Georgia, in 1996 the state legislature did away with this form of marriage. However, all of the states, including Georgia, recognize a common law marriage that was properly created in another state that permits such marriages. Furthermore, Georgia recognizes any common law marriage that was valid in Georgia prior to the enactment of the 1996 law.

Living Together

What if a couple lives together?with no intent to marry? In other states, such as California and New York, people have attempted to create a new kind of legal relationship called contract co-habitation. This type of relationship allows two unmarried people to enter into a contract respecting the arrangement of them living together without being married. The Georgia courts have refused to recognize such contracts. According to Georgia law, such contracts are illegal because they involve sexual relations between two people who are not married.

BEING MARRIED

Prenuptial Agreements

Can any rights and duties be settled before marriage? Consider situation 3.

SITUATION 3 Darrell and Marcia are considering marriage. Marcia is supporting herself as a sales clerk. Darrell has some valuable property and expects to inherit more. He knows marriages don't always work out. He wants Marcia to agree to give up her rights to alimony (support) payments or to any division of property if they divorce. Marcia -insists that he agree to pay her $50,000 if they divorce, in return for her agreement to give up her rights.

Would such an agreement be fair? Would the courts accept it as valid?

Couples sometimes make prenuptial agreements such as that described in situation 3 before they get married. Such agreements settle the rights each will have if they get divorced.

In 1982, the state supreme court said that prenuptial agreements would be recognized in Georgia. The court set up three guidelines for judges to use in deciding whether to enforce a prenuptial agreement. A judge is to consider the following questions:

1. Was the agreement obtained through fraud, duress, or mistake? Were -important facts regarding the financial conditions of the parties not disclosed or misrepre-sented?

2. Is the agreement unconscionable? In other words, is it so one-sided that one party will get a great deal and the other practically nothing?

3. Have the facts and circumstances changed since the agreement? Would it now be unfair or unreasonable?

If any of these conditions are true, the agreement might not be recognized. Using these ques-tions as guidelines, consider whether Marcia and Darrell's agreement in situation 3 would be valid.

Legal Rights and Duties

SITUATION 4 At 3 p.m. on a Saturday, Sara Gomez and Bobby Joe Whitson were single. At 4 p.m. of the same day, they are married.
What does the change mean for them in terms of legal rights and duties?

A marriage creates certain legal rights and duties between two people. Some rights and duties occur right away. For example, upon being married, either spouse has the right in Georgia to give up his or her own surname (family name) and take that of the other. A partner can keep his or her own surname, or a partner can use both surnames with a hyphen. In other words, Sara could be Sara Gomez, Sara Whitson, Sara Gomez-Whitson, or Sara Whitson-Gomez. Sara and Bobby can also call themselves Sara and Bobby Gomez-Whitson or Sara and Bobby Whitson-Gomez.

Generally, a couple cannot sue each other in Georgia once they are married. Exceptions to this law cover special situations, including divorce, child support, legal separation, and abuse. Suppose Sara were injured in an auto accident. Even though Bobby Joe was driving and responsible for the accident, she could not sue him for damages.

The couple may make use of a new tax status. Sara and Bobby Joe can file joint income tax returns for the year in which they were married and thereafter.

Suppose Bobby committed a crime and Sara witnessed it? Could Sara be forced to testify against Bobby? What if Bobby came home and told Sara what he had done? Would that change your answer? What if the crime took place before the marriage and the trial after the marriage? Can Sara be made to testify to what she saw or heard before the marriage?

The answer is "no" to all of the above questions. Spouses cannot be forced to testify against each other in a criminal case, unless the crime (such as abuse) is against the person of a minor child.

In Georgia, a wife and husband have rights to inherit from each other if one spouse dies intestate (that is, without a will). If divorced, spouses may have rights to alimony (or payments of support) from each other. Each also has a right to an equitable division of the property accumulated together during the marriage.

Individual Responsibilities

Under Georgia law, each spouse is an individual able to assume legal rights and duties. Therefore, each can enter into contracts by him- or herself or together (individually or jointly). Each can sue others and be sued by others.

SITUATION 5 Rose buys living room furniture in her married name, Mrs. Larry Jones. Her husband, Larry, however, insists that they cannot afford the furniture. He refuses to pay the charges.
Must he pay?

Before April 1, 1979, in Georgia, a husband was legally responsible for any debts or purchases his wife made for "necessaries" (that is, food, clothes, medical services, and shelter). For example, if his wife signed a contract to lease an apartment, he might be responsible for the rent. He would be responsible even though he never signed the contract.

In 1979, the U.S. Supreme Court decided a very important case, Orr v. Orr, 440 U.S. 268 (1979). The Supreme Court held that it is unconstitutional to put the burden of support on the man in marriages or divorces. It said such laws discriminate against men. One of the results of the decision is that the Georgia legislature repealed the state law that made a husband automatically responsible for his wife's debts. Now neither husband nor wife is automatically responsible for the debts of the other. In sit-uation 5, Larry would not have to pay Rose's debt unless he also signed the contract making himself liable for the debt. Payment for the furniture is Rose's obligation because she purchased it.

Creditors often protect themselves by requiring both spouses to sign credit card applications or leases. Such a requirement makes each spouse responsible for purchases or contracts made by each other.

The Right Not to Be Abused

The government favors and encourages the institution of marriage. It encourages marriages by interfering in them as little as possible. No laws specify proper marital behavior. No laws, for example, state how a couple should divide the household chores. No law states how many children a couple should have, if any.

However, Americans have pushed governments to "interfere" in one aspect of family life: violence to and between family members. Beginning in the 1970s, increased awareness about domestic violence or abuse of children, spouses, and (more recently) the elderly resulted in legal protection for these victims.
The need to protect these groups from abuse and neglect outweighs policies of not interfering in family life.

In 1981, the Georgia legislature established court relief for "family violence." It gave the superior court authority to act to protect victims. The Family Violence Act applies to family members, former spouses, foster families, and other persons living in the same household. It also protects persons who are parents of the same child (regardless of whether they were ever married). Those persons who formerly lived in the same household are also protected. The court can:

? direct a person to stop committing such acts.
? exclude the person committing the violence from the household.
? require the abusive party to provide alternative housing for a spouse and children.
? remove minor children temporarily from parental custody.
? award support for children and/or a spouse.

Another recognized offense against family members is sexual battery. A 1990 law defines this offense as the touching of another person's intimate body part(s) without that person's consent. It also prohibits this act within or outside the family.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004).  The Vinson Institute is not responsible for errors in the online text.  Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications.  Any such matter should be specifically addressed with an attorney. The book is available for purchase at www.cviog.uga.edu or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.