Georgia Annulment Lawyers
Coleman Legal Group, LLC
A valid marriage in the state of Georgia is fulfilled by the following three elements:
- The parties ability to contract
- An actual contract
- Consummation according to law
A marriage lacking any of these three elements is invalid, except in the case of a child being born into such a union, in which case the marriage is validated.
Under Georgia law, entering into a “civil union” under the laws of another state will not be recognized as a valid marriage, even if that state legally recognizes same sex marriages.
An invalid marriage is void ab initio, and the parties involved may thus assume it void without further judgment or declaration from a court. If the validity of the marriage is an issue in legal proceedings where this question is of interest for the purposes of alimony, wills, etc., a purported marriage may be attacked on grounds that it was invalid from the outset.
The procedural and jurisdictional requirements for annulment are similar to that of a Georgia divorce case, and the grounds for an annulment include any impediment or disability which would render the purported marriage invalid.
A decree of annulment has the effect of rendering a marriage invalid and returning parties to their individual state prior to marriage.
Conflicts of Law in Annulments
O.C.G.A. § 19-3-43 provides that all marriages solemnized in a sister state by parties intending to reside in Georgia will have the same legal consequences and effect as if solemnized in the State of Georgia. A proviso is added, however, that a resident of the state of Georgia may not evade its laws by going into another state for solemnization of the marriage ceremony when that state’s laws are contrary to the general policies set forth by this state.
Furthermore, no union between persons of the same sex shall be granted the benefits of marriage.
With respect to foreign countries, the full faith and credit clause does not apply; comity will applied only where the laws and procedure of the foreign jurisdiction do not contravene the morals, public policy, or good conscience of this state.
Common law marriages entered into in Georgia prior to January 1, 1997 will be recognized, but none thereafter.
In order to be considered a valid marriage, three elements must be present: there must be parties able to contract, an actual contract, consummation according to law.
Further explanation of the elements:
Parties ability to contract – In order to be able to enter into the contract of marriage, the following conditions must be met by each party:
- An actual contract – O.C.G.A. § 19-3-4 mandates that the parties’ consent must be voluntary without fraud practiced on either when entering a marriage contract in order for it to be a valid and binding legal document. An example of fraudulent activity that could invalidate a marriage if it had been the cause of consent is intentional induction of drunkenness in one party to force consent. Duress is in most cases a sufficient ground to invalidate marriage, unless it is the result of a decision made simply to avoid prosecution.
- Sound mind – both parties need to be of sound mind.
- Age of consent – both the male and the female must be at least 18 years of age. A child of 16 or 17 must have parental consent.
- Proper relationship – within the prohibited degrees, one party must not be related to the other
- Previous marriage dissolved – neither party can enter a new contract without legally dissolving all previous contracts
- If the contract is entered in the spirit of fun and jest, it is still held that the marriage is valid, although contract law may state otherwise.
A marriage contract is not required to be in writing.
Consummation according to the law – For a ceremonial or formal marriage, consummation is accomplished either a) by obtaining a license to marry and the performance of a ceremony by a minister or other person authorized to join persons in matrimony (O.C.G.A. § 19-3-30), or b) by an actual agreement in words of present tense to be man and wife with the intention of assuming a marital relationship. Sexual intercourse is not a requirement for consummation of a marriage according to law.
Each of the above requirements is essential to the validity of a marriage and must be fulfilled simultaneously. If any of them are missing at the time of an attempted marriage, the marriage cannot be considered valid unless a child is to be or has been born of the union.
A marriage invalid at its inception can, after all impediments have been removed, still be declared a valid matrimonial union if it is subsequently validated by both parties through their voluntary consent to cohabit as husband and wife.
Annulment is a judicial declaration that states that a marriage was void from its inception on the grounds aforementioned and that returns parties to their pre-marital status, without granting consideration questions addressed in divorce proceedings, such as alimony. Children cannot be born of the union in order for annulment to occur.
Procedure for Annulment
Annulment of marriages within the state of Georgia can be granted only through the superior courts of this state. The proceeding is commenced by filing a petition for annulment by one of the parties or “by next friend” in the case of minors or persons of unsound mind.
In an action for annulment where a spouse contests the proceeding by arguing that no grounds for annulment exist, temporary alimony and attorney’s fees may be awarded to allow the spouse the means for contesting a decision in the proceedings pending a decision.
Consequences for Annulment
A decree of annulment shall have the effect of total divorce between the parties and will also void the marital contract between them, thus returning them to their individual, pre-marital state. However, it will not release any party of criminal activity engaged in through the union, such as bigamy or incest.
People may wish to avoid the stigma and “messiness” of divorce by annulling their marriage. However, as demonstrated, there are several specific conditions that must be fulfilled under Georgia law for annulment to be possible.
Consequences of an invalid marriage
An invalid marriage is void from its inception and can be disregarded without further court decree.
Consequences of an invalid marriage – I. Children
A child born of an invalid marriage is legitimate if it is born before the marriage is annulled or declared void by a competent court. In certain cases, the pregnancy of the “wife” or the birth of a child will ipso facto validate an otherwise invalid marriage.
The Georgia Supreme Court has taken the position that O.C.G.A. § 19-4-1 has the effect of validating marriages otherwise void. This section of Georgia code also forbids annulment in the case of a child born or to be born of an illegitimate marriage. Such cases mandate that the dissolution of marriage be granted only through a divorce, entitling either spouse or children or both to financial support.
To summarize, under Georgia law, a child or children born of an invalid marriage are legitimate and such birth serves to validate a marriage invalid for non-age, fraud, duress, or other impediments of like nature. However, a bigamous marriage is still void even though children are born and legitimate of one of the relationships. The parent is still under an enforceable obligation to support his or her children (Doke v. Doke).
Consequences of an invalid marriage – II. Divorce and Alimony
The general rule states that if a marriage is invalid from inception and no children born of the union have validated it, no action for divorce or alimony can be made. This is true even if the following circumstances are true: the marriage is of long duration, it was initiated in good faith, and/or the parties had no knowledge of impediment.
Consequences of an invalid marriage – III. Wills and Administration of Estates
The validity of a marriage will be a determining factor for the rights of inheritance by a party claiming to be an heir-at-law as a surviving spouse. The children of an invalid marriage would be legitimate for purposes of inheritance and the right to year’s support.
Consequences of an invalid marriage – IV. Crimes
In addition to the usual consequences of an invalid marriage, a person commits a crime when he, being married, marries another person, or being unmarried, marries a married person, or carries on a bigamous cohabitation.
Likewise, a marriage is invalid, and it is a crime, for one to marry a person to whom he is related, either by law or by blood. The following relationships included:
- Father and daughter or stepdaughter;
- Mother and son or stepson;
- Brother and sister of whole blood or half-blood relation;
- Grandparent or grandchild;
- Aunt and nephew; or
- Uncle and niece.
Consequences of an invalid marriage – V. Civil Actions
The legal validity of a marriage will directly affect a person’s ability to bring a claim for wrongful death of a spouse in a civil action or for statutory benefits provided under the Workers’ Compensation Law.
Coleman Legal Group, LLC’s Georgia lawyers practice in the areas of Divorce, Family Law, Estates, Wills, Trusts, Probate, Bankruptcy, Business Law and Immigration. We have offices conveniently located at:
North Point Park
5755 North Point Parkway
Alpharetta, GA 30022
Phone: 770-408-0477 | Map
|Dunwoody, Sandy Springs
GA 400, Atlanta Georgia
1200 Abernathy Rd
Atlanta, GA 30328
Phone: 770-408-0477 | Map
|Johns Creek, Duluth GA
11555 Medlock Bridge Road
Johns Creek, GA 30097
Phone: 770-408-0477 | Map
125 TownPark Drive
Kennesaw, GA 30144
Phone: 770-609-1247 | Map
Georgia Areas We Serve
Coleman Legal Group, LLC’s divorce and family law attorneys handle cases in the following cities and communities: Atlanta, Alpharetta, Roswell, Johns Creek, Milton, Cumming, Marietta, Sandy Springs, Woodstock, Kennesaw, Gainseville, Norcross, Lawrenceville, Midtown, Inman Park, Duluth, Buckhead, Dunwoody, Vinings, Smyrna, Covington, Conyers, Newborn, Mansfield, Oxford, Social Circle, Porterdale, Buford, Sugar Hill and Starrsville.
Our divorce and family law attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette, Newton, Walton, Rockdale and Clayton.
Copyright © 2016 | Coleman Legal Group, LLC | All Rights Reserved. Coleman Legal Group, LLC • 5755 North Point Parkway, Suite 52 • Alpharetta, GA 30022 • 770-609-1247 DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.