AM I NOT MARRIED IF I DON’T FILE THE MARRIAGE CERTIFICATE IN THE PROBATE COURT?
Were we married if we didn’t file a marriage certificate with a probate court? What if we had a ceremony in Barbados on the fly and held ourselves out as married?
Recently I had an issue with someone who believed that even though they had a marriage ceremony he never filed the marriage certificate and therefore was not considered ever married to his spouse. This is simply a false notion.
A lawful marriage is complete where the parties able to contract have actually contracted to be spouses in the forms and with the solemnities required by law. Pitts v. State, 137 GA 801 95 Southeastern 706 (1918) To constitute an actual contract of marriage, the parties must consent thereto voluntarily without any fraud practiced upon either. Drunkenness at the time of marriage, brought about by contrivance to induce consent, shall be seen as fraud. O.C.G.A 19-3-4, Baxter v. Rogers 195 Ga. 274, 24 S.E.2d 52 (1943).
To establish that a marriage is valid, there are certain evidentiary requirements that must be met. The law favors the validity of marriage. Brown v. State 208 Ga. 304 (1951). The burden is upon the person attacking the validity of the marriage to establish by clear, distinct, and satisfactory proof that the marriage is valid. Fanning v. State 46 Ga. App. 716, 169 SE 60 1933. As mentioned previously, there is a presumption that a marriage is valid upon proof that a formal ceremony occurred, followed by cohabitation the parties under the belief that they are lawfully married. Id. Said presumption may be rebutted by evidence negating validity, such as evidence that no formal ceremony occurred. A public record of a ceremonial marriage is conclusive evidence of the marriage. Guess v. Guess 202 Ga. 364, 43 S.E.2d 326 (1947).
At common law, consummation generally refers to the act of engaging in sexual relations. Courts have strayed from the strict definition and have construed this requirement more broadly, such as the act of engaging in a wedding ceremony. Consummation of a marriage must be conducted according to Georgia law. O.C.G.A 19-3-1. Originally, according to law was interpreted to mean the common law as outlined in Askew v. Dupree 30 Ga. 173 (1860). Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951).
So these are the elements that make a marriage a valid marriage. Although the public record of a ceremonial marriage is conclusive evidence of the valid marriage there are many other ways to arrive at whether the marriage was valid or not and a filed marriage certificate is not required.Contact a Atlanta family law lawyer today if going through a divorce.