Written by Rachel Aliza Elovitz
Historically, divorce law in the United States was fault-based. Dissolving a marriage meant that one spouse would have to demonstrate to the tribunal that the other spouse was “guilty” of some act that the legislature had determined was sufficient to allow the marriage to be dissolved, such as an act of cruelty, adultery, or desertion. Marriages did not end on impulse or because it was the most expedient way to resolve conflict. Instead, divorce law invited marital commitment and social order.
By the mid 80’s, all 50 states had adopted no fault divorce laws. With the advent of what has been dubbed “unilateral divorce,” the grant of divorce became automatic, inasmuch as it was not dependent upon the demonstration of any fault and could not be forestalled by the objection of a spouse who wished for the marriage to stay intact. As a result, divorce rates increased, in some instances by almost 12 percent. https://www.stlouisfed.org/publications/re/articles/?id=5
Georgia adopted no-fault divorce in the early 70’s, adding a 13th ground for divorce – “irretrievably broken marriage.” All that a spouse must demonstrate to obtain on this no-fault ground is that the parties are in living in a bona fide state of separation (a separate residence is not required, only the absence of marital relations) and that there is no hope of reconciliation.
While the stigma of divorce is not what it was when our parents were young (and for those of you who are half my 47 years, when your grandparents were young), it is nonetheless alive and well. That stigma is often the motivating factor behind a client’s inquiry regarding the availability of annulment. But even if suffering the stigma of divorce were a legal basis to annul a marriage, who are we kidding? If you’ve been married for 5, 10, 15, 20, or 25 years, would anyone perceive your “annulment” as something other than a divorce? So under what circumstances is one entitled to seek an annulment? This legal guide is intended to answer that question.
- What marriages are void from the onset under Georgia law?
Marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract are void under Georgia law. To be able to contract marriage, a person must: (1) Be of sound mind; (2) Be at least 18 years of age (or 16 or 17 with parental consent); and (3) Have no living spouse of a previous undissolved marriage. (4) Not be related to the prospective spouse by blood or marriage within the prohibited degrees. Additionally, marriages between persons of the same sex are prohibited in Georgia. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction is also void in this state. Parties to a same sex marriage are not, under the current state of Georgia law, entitled to the benefits of marriage.
- Is There a Presumption in Favor Of Validity?
When a marriage has been solemnized and the parties to the marriage are living together as man and wife, there is a presumption that they had capacity to contract the marriage and the existence of all other facts necessary to render the marriage valid are similarly presumed. That presumption stands until credible evidence to the contrary is presented. The burden is upon the party who attacks the validity of a marriage to show that it is invalid by clear, distinct, positive and satisfactory proof. When a party to a ceremonial marriage was previously married and the validity of the second marriage is challenged, a presumption arises that the second marriage is valid until evidence is presented that the spouse of the first marriage is living. At that time the burden is placed on the party contending that the second marriage is valid to demonstrate that the first marriage was dissolved by divorce.
- Under What Circumstances, If Any, Can A Void Marriage Be Ratified?
When a party unwilling to contract or fraudulently induced to contract subsequently consents to and ratifies the marriage, freely and voluntarily, and cohabits with his or her spouse as husband and wife, then such action validates the marriage. In the case of a marriage void due to one party being unable to contract (i.e. a 16 or 17 years old without parental consent or someone who is not of sound mind), after removal of the impediment to marriage, a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife will also render the marriage valid.
- Rachel A. Elovitz is a domestic litigator who regularly serves as a guardian ad litem, representing the interests of children in custody, abuse, and neglect cases in Georgia’s Superior and Juvenile Courts. She is a regular contributor to the DeKalb Bar News.
Originally published here: