Marriage he next two chapters are about family law. This chapter deals with the legal relationship between husbands and wives. It is Tabout marriage and ending marriages legally. Chapter 9 explains the effect of law on children and their parents. 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. Note in this chapter how laws have been affected by the changing role of women in society. Also note how changing at- titudes about divorce have affected the law. 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 alimony cost of food. They may even purchase property together. However, in annulment Georgia, they have no special legal rights unless they are married. In Georgia, to have a valid marriage, the two people must ceremonial marriage • be legally competent to contract marriage. child support • agree to be husband and wife. divorce • consummate the marriage (according to the legal definition). divorce settlement LAWlegal TALK separation 102 CIVIL LAW 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 A probate court judge issues marriage licenses to someone else cannot legally marry. In Geor- in Georgia. gia and elsewhere, a married person who mar- ries again without a divorce is guilty of bigamy, a crime. If the new spouse knows about the big- of 18, you cannot get a marriage license with- amy, he or she is guilty of the crime of marrying out parental consent. June and Bob would need a bigamist. Terry (in example a) couldn’t marry parental consent (example e). Wendy until his divorce is final. Persons under the age of 16 may marry if Two people who are closely related by blood there is proof that the female is pregnant or that or marriage cannot marry. For example, the law they are the parents of a living child. However, forbids a man to marry his daughter, his step- the county probate court is required to notify the daughter, his sister, his aunt, his niece, his mother, parents of anyone under age 18 who is applying or his grandmother. Likewise, a woman cannot for a marriage license. marry her corresponding relatives. These relationships within which marriage Ability to Contract Marriage is forbidden are known as the degrees of consan- guinity. They are set forth in the Official Code of The first requirement for a valid marriage is the Georgia Annotated §19-3-3. Laws on incest are ability (or capacity) of the parties to contract. a direct result of these degrees. If you marry (or Ordinarily, an adult has the capacity to enter a have sexual relations) with anyone within these contract. There are occasions, however, when prohibited degrees, you commit incest and may an adult lacks the capacity necessary to enter the be criminally prosecuted. marriage contract. For example, if an adult has In examples b and c, the couples could not been declared incompetent by a court, he or she marry. The couple in example d could marry. lacks the capacity to contract. A married person Georgia permits marriages between first cous- also lacks the capacity to enter a (second) con- ins. Most states, however, do not permit such a tract of marriage. marriage. Governments also set minimum ages for a The Marriage Contract legal marriage. To marry in Georgia, you must Another requirement for a valid marriage is that be at least 16 years old. If you are under the age the two persons verbally agree to be husband and Marriage 103 wife at the present time. There is no legal mar- tion may also be accomplished when the man and riage if the persons agree to be married in the woman, using words of present tense, agree to future. The agreement to marry can be a spoken marry—but only if they are in a state that recog- one. What of the agreements in the following nizes what is called common law marriage. Sex- situations? Would the marriages be valid? ual intercourse is not required to consummate a valid ceremonial marriage. SITUATION 1 Sam gets Mildred so drunk that she goes through their marriage ceremony unaware of what is occurring. Kinds of Marriage SITUATION 2 Holly and Lester decide to get Ceremonial Marriage married for a joke—thinking they can quickly Marriages begin with a formal marriage cere- get out of it. mony, which may be a religious ceremony or a civil ceremony performed by a judge. Georgia law says that to create a contract of Before a formal marriage ceremony can be marriage, the parties’ consent must be voluntary. performed, the couple must get a marriage li- No fraud can be practiced upon either one. A marriage in which one party was tricked or de- cense. This license may be obtained from the frauded may be voided (or set aside) by court courthouse in the county in which the marriage action. Mildred (situation 1) may be able to get will take place or in any county, provided that the marriage voided because Sam “tricked” her one of the applicants is a state resident. If the into it by getting her drunk. Similarly, duress that marriage is to be performed in a state other than prevents voluntary consent may allow one of the Georgia, the requirements of that state must be parties (the victim of duress) to set aside the mar- followed in order to have a valid marriage. Laws riage. Duress is any unlawful threat to make an- on marriage and marriage licenses vary from other person do something against his or her will. state to state. In Georgia, marriage licenses are A threat at gunpoint is an example of duress. issued by judges of the probate courts (see fig- Although not true of contracts generally, ure 8-1). a marriage contract has been held valid even Before receiving the license, couples must though it was made in jest. The courts’ view has take a blood test for certain diseases, including been that there is no way to prove objectively syphilis, sickle cell anemia, and rubella (or Ger- that the parties were acting in a “spirit of fun and man measles). The blood tests can be given by jest.” How could witnesses know or testify to the the county board of health. Even with a formal parties’ true feelings? For this reason, Holly and ceremony, license, and blood test, however, a Lester (situation 2) would have to get a divorce marriage is not valid unless the three require- to end their marriage. ments mentioned earlier are met. Note that in a marriage ceremony the law’s concern is with the basic agreement to marry. Common Law Marriage Promises—such as those to love, honor, and obey— A common law marriage is a marriage formed are personal rather than legal commitments. without a formal ceremony. Although formerly recognized in Georgia, in 1996 the state leg- Consummating the Marriage islature did away with this form of marriage. Consummation is the third requirement for a However, all of the states, including Georgia, valid marriage. The legal definition varies ac- recognize a common law marriage that was prop- cording to the type of marriage. In a ceremonial erly created in another state that permits such marriage, consummation may be achieved by ob- marriages. Furthermore, Georgia recognizes any taining a license to marry and having a ceremony common law marriage that was valid in Georgia performed by an authorized person. Consumma- prior to the enactment of the 1996 law. 104 CIVIL LAW FIGURE 8-1 Application for Marriage License County of _____________________________________ County No. ___________________________________ Please type or neatly print (USING BLACK INK) all the information below. GROOM’S INFORMATION BRIDE’S INFORMATION 1. (First, middle, last name) (First, middle, last name) 2. Current address Current address City and county City and county State and zip code State and zip code Daytime phone number Daytime phone number 3. Age Date of birth Race Age Date of birth Race 4. Birthplace (city or county and state) Birthplace (city or county and state) 5. Are you blood related? Yes ____ No ____ 6. Occupation or name of company Occupation or name of company 7. Last name you will use after marriage Last name you will use after marriage 8.a. Number of previous marriages _______________________ Number of previous marriages _______________________ 8.b. If previously married, how was it dissolved? If previously married, how was it dissolved? (circle) Death Divorce Annulment (circle) Death Divorce Annulment 8.c. Upon what grounds? _______________________________ Upon what grounds? _______________________________ 8.d. When and where? _________________________________ When and where? _________________________________ 9. Is there any legal impediment? Yes ____ No ____ Is there any legal impediment? Yes ____ No ____ 10.