MARRIAGE IN GEORGIA
In the American Federal System power is divided between the national and the state governments. States have a broad authority know as the "police power" to make laws related to public health and safety. The rules about marriage (the category of law known as domestic relations) come under this police power. With a few exceptions almost all laws concerning marriage are state laws. Since each state is free to make its own rules, the laws about marriage and divorce vary from state to state.
Marriage is a civil contract, sanctioned by the state and accorded special treatment in the law in Georgia. It is encouraged by the state as a matter of public interest and concern. Marriage is favored by the state for the education, care and maintenance, support, control, and custody of minor children. Up until 2003, marriage was the only relationship in which sexual intercourse between consenting adults was lawful. It was a crime known as fornication for unmarried persons to have sex even if it was consensual (the age of consent for sex in Georgia is 16). Although the Georgia Supreme Court has struck down the law making fornication a crime, It continues to be a crime known as statutory rape to have sex with someone (other than a spouse) who is under 16, even if that person consents. If a couple has had sex when one of them was underage, it is still a crime even if they married afterward.
In Georgia, formal (or ceremonial) Marriage has three requirements:
(1) that the two parties are capable of contracting marriage by their age and status,
(2) that the agreement is by free consent, without force or a marriage broker used, and
(3) that it is consummated according to the law.
Despite Georgia's requirements for marriage, the full faith and credit provision of the U.S. Constitution requires Georgia to recognize as legal, marriages consummated in another state under that state's laws even if the marriage would not be valid under Georgia law. However, the Georgia legislature has stated it will not recognize same-sex marriages even if they are legally made in another state.
Georgia recognized a second, informal type of legal union known as common law marriage until Jan 1, 1997. Common law marriage occurred when a man and woman cohabited and proclaimed to the public that they were husband and wife (this could be done as easily as by signing a motel register as "Mr. & Mrs."). The justification for recognizing common law marriage is so that the children of such a union will not be considered to be illegitimate. There is no such thing as a common law divorce; a common law marriage must be terminated by the courts like any other marriage. Georgia does recognize common law marriages from other states where this form of marriage is still legal to make (such as South Carolina).
WHO CAN MARRY IN GEORGIA
Georgia's prohibitions on who can not marry come from the book of Leviticus in the Bible. A marriage between a man and his sister, aunt, niece, daughter-in-law, sister-in-law, half sister, stepmother, or stepdaughter would be void (that is, it never existed). However, unlike some states, Georgia does not prohibit the marriage of 1st cousins. This was a custom in the ante-bellum South. A state that does prohibit 1st cousin marriages would have to recognize such a marriage made in Georgia as legal because of the full faith and credit requirement.
The minimum age for marriage is 16 years for males and females with parental consent; after age 18, parental consent is not required). The parent or guardian must appear in person and give consent if the bride or groom is 16 or 17. In 2006, the state legislature eliminated the loophole in state law that allowed couples of any age to get married without parental consent in the case of pregnancy. This change was the result of the case of a 37 year-old woman who married a 15 year-old boy after she became pregnant. Despite her marriage, she was still sentenced to 9 months in jail for statutory rape.
Before 1967, it was a crime called miscegenation for a white person to marry a person of a different race in Georgia. All state laws of this type were struck down by the U. S. Supreme Court in the case of Loving v. Virginia, 388 U.S. 1 (1967).
FORMALITIES FOR A MARRIAGE
Consent must be voluntary, there can be no fraud (such as concealing a pregnancy by another man) and the parties can not be drunk when there is an exchange of promises. A jest or sham wedding is void in Georgia. There can be no marriage by proxy or telephone in Georgia. Captains of ships do not have the authority to marry a couple.
Since July 31, 2003, a blood test is no longer required for a marriage license in Georgia. In Georgia the fee to receive a marriage license is set by the county. In Dekalb County the fee is $26. You must present proof of your age when applying for a marriage license. There is No Waiting Period between applying for your license and receiving your license. In a few states after you receive your license you must wait a short period of time before getting married. Georgia law allows you to get married Immediately after officially receiving your marriage license.
There is no required ceremony as long as the performing official is authorized to do it. The official can be a judge, city recorder, justice of the peace or a minister. The marriage is consummated by the cohabitation of the two parties and compliance with all the formalities.
RIGHTS & LIABILITIES OF HUSBAND AND WIFE
Section 53-501 of the Georgia Code states that the husband is the head of the house and the wife is subject to him except where the law recognizes her interests. Any property owned before the marriage continues to be that person's after marriage and not their spouse's. Neither the husband nor the wife is responsible for the other's debts. The husband is not entitled to the wives salary except by her consent. Georgia has no laws about how household chores are to be divided between husband and wife.
A husband and wife have a right to the consortium of each other. Consortium can be defined as any service or benefit a person gains from their marriage. A spouse may recover damages from anyone who interferes with their consortium or services from their mate. It is no longer true but at one time in Georgia, a husband or wife could sue for damages if someone interfered with their marital relationship. This included actions for alienation of affections (causing someone's spouse to fall out of love with them), adultery, and enticement of the wife or husband away from their spouse.
A husband and wife do not have the right to touch each other's intimate body parts without the other's consent. A 1990 Georgia law makes such an act a crime called sexual battery and a punishable offense in this state.
If the requirements for a valid marriage have not been met; a marriage may be ended by annulment. An annulment is a declaration by the court that the marriage never existed. In some cases like bigamy or incest, no annulment is necessary because the marriage was illegal. A person might seek an annulment in a case where they were tricked into marriage by fraud, falsehood, or physical or mental duress (force or pressure). An example of this could be a situation where the woman claims to be pregnant when she is not, to get the man to marry her. However, if the man forgave her lying to him and did not seek an annulment it would remain a valid marriage.
DIVORCE IN GEORGIA
A couple may be legally separated in Georgia but it does not end the marriage. The separation must be granted by a court. A separation can be thought of as putting the marriage on hold until there can a reconciliation or the couple decides to dissolve the marriage by divorce.
In Georgia a couple may be legally separated but only a divorce actually ends a marriage. To file for divorce in Georgia you must have lived in the state for 6 months. The divorce action must be filed in the county where the defendant lives. There is a 31 day cooling off period required after the defendant is notified before a divorce can be granted. Divorce can be a jury trial.
Georgia recognizes 13 grounds for a divorce action:
(1) incest (technically the marriage was void from the beginning),
(2) mental incapacity at the time of marriage (it could also be annulled, a declaration that it never existed)
(3) impotency at the time of marriage,
(4) force, duress, or fraud in obtaining the marriage,
(5) pregnancy by another man at the time of marriage (only if concealed),
(6) adultery (voluntary sex with someone other than the spouse),
(7) willful desertion for one year,
(8) imprisonment of a spouse for a term of two years or more,
(9) habitual intoxication,
(10) cruel treatment (physical or mental),
(11) incurable mental illness (but the ex-spouse is still liable for support and maintenance of the person),
(12) habitual drug addiction under the state Narcotic or Drug Abuse Act, and
(13) the marriage is irretrievably broken (no-fault divorce). There has been a movement to abolish this due to the belief it makes divorce too easy.
A jury or judge decides the rights and disabilities of the parties in divorce. A judge or jury can divide a couple's property and debts acquired during the marriage equitably no matter whose name the property is listed in. The Court decides custody of children under 14, children 14 and older who can pick the parent they live with unless the parent isn't fit. Since 1990, joint custody of children has been legal in Georgia. Grandparents can petition for the right to visit children but stepparents and foster parents have no visitation rights.
Alimony is payment by one spouse to the other for the other's support and maintenance. The court may grant alimony to either the husband or the wife. Alimony may be for a limited period of time or until the spouse receiving alimony dies, voluntary cohabits with someone else, or remarries. Alimony can be paid in one payment of money or property, or it may be paid over a period of time. The Court decides alimony out of the husband's estate, unless the wife is shown to have been unfaithful or to have walked out of the marriage. Alimony is based on the wife's needs and the husband's ability to pay. A petition for a change in Alimony can be made only once every two years. Child support is determined separately and is not based on if the wife gets alimony or not. A woman may be required to pay alimony and child support in some cases.
In Georgia, both parents can be required to support their children until a child reaches the age of 20 years, dies, graduates from high school, marries, is emancipated or joins the military, whichever event occurs first. The non custodial parent will be required to pay a reasonable amount of child support to the custodial parent towards the child's living expenses. Child support, in addition to a monthly or weekly sum, may also include such items as health insurance and payment of medical and dental expenses. The court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses.
Child Support Guidelines went into effect on July 1, 1989. These guidelines establish an amount of child support as a percentage range of gross income of the non custodial parent, based upon the number of children. For one child the percentage range is 17-23 percent of the gross income of the non custodial parent; for two children, 23-28 percent; for three children, 25-32 percent; for four children, 29-35 percent; and for five or more children, 31-37 percent. The court can deviate from the guidelines in allocating child support based on a number of factors including the ages of the children, day care costs, education costs, amount of debt and obligations to another household.