1. Contemplating, Entering Into, and Annulling Marriage Flashcards
What is a marriage in Georgia?
A marriage is a legally recognized union between two people, created by the state.
What is the right to marry in Georgia?
The right to marry is a fundamental right, meaning it has constitutional protections.
What test must restraints on marriage survive in Georgia?
Restraints on marriage must survive the strict scrutiny test.
Are private attempts to restrain marriages valid in Georgia?
No, private attempts to restrain or discourage marriage are invalid in Georgia.
Does Georgia require marriage to be in writing?
Yes, Georgia requires a marriage agreement to be in writing and signed by the party to be charged.
What are gifts in consideration of marriage?
A gift ‘in consideration of marriage’ is conditional upon the future marriage of the giver and receiver.
What happens to the gift if the marriage doesn’t occur?
If the marriage doesn’t occur, the giver can typically reclaim the engagement ring or other pre-marital gift.
Is an inter vivos gift to a lover or fiancé revocable?
An inter vivos gift becomes irrevocable if given without the marriage condition and meets three criteria:
1. the giver’s unconditional intent;
2. the recipient’s acceptance; and
3. the delivery of the gift to the recipient.
What is a prenuptial agreement?
Prenuptial agreements are contracts made by the parties prior to the marriage in contemplation of the end of the marriage.
How do Georgia courts enforce prenuptial agreements?
Georgia courts will enforce such agreements based on general contract formation requirements.
What is the difference between marriage articles and marriage contracts in Georgia?
A marriage article is the actual agreement, can be oral or in writing, while a marriage contract requires a written agreement for future activities.
What are the enforcement criteria for a prenuptial agreement in Georgia?
A prenuptial agreement is enforceable if:
1. not obtained through fraud, duress, or misrepresentation;
2. if it’s not unconscionable;
3. enforcement won’t be unfair due to changed circumstances since its execution.
Does Georgia hold engaged persons to the standard of fiduciary duty?
No, engaged individuals aren’t bound by spousal fiduciary duty in Georgia.
Will Georgia enforce provisions of marital agreements that adversely affect third parties?
No, Georgia will not enforce such provisions.
What legal impediments to marriage exist in Georgia regarding race?
The state cannot impose restrictions on who can marry based on race.
What is the minimum age to obtain a marriage license in Georgia?
Georgia prohibits issuance of a marriage license to any party who is under 17 years of age.
In addition, if the applicant is 17, they may not marry someone who is more than 4 years older.
What relationships make an attempted marriage void in Georgia?
The following relationships are prohibited:
* father and daughter or stepdaughter;
* mother and son or stepson;
* brother and sister of the whole blood or the half-blood;
* grandparent and grandchild;
* aunt and nephew;
* uncle and niece.
Can first cousins marry in Georgia?
Yes, Georgia permits marriages between first cousins.
What must parties do to constitute a valid marriage in Georgia?
Parties must:
1. be able to contract;
2. have an actual contract to marry;
3. consummate the marriage.
What is the status of common law marriage in Georgia since January 1, 1997?
No common law marriage may be entered into in Georgia since that date.
What are the essential criteria for establishing a common law marriage?
- Expression of Intent;
- Cohabitation;
- Holding Out;
- Legal Capacity;
- Burden of Proof.
What does the term ‘Expression of Intent’ mean in the context of common law marriage?
Common law marriage requires an exchange of vows or intention to be married.
Spoken words aren’t necessary; evidence like a writing or cohabitation can suffice. There’s no time limit; intent, not time, determines common law marriage.
What does the term “Holding out” mean in the context of common law marriage?
Under common law, parties must hold themselves out to the community as a married couple. Evidence of a community reputation as a married couple can fulfill this requirement. However, intermittent representations as a married couple may not suffice.
What is the legal capacity required for a common law marriage?
The parties to a common law marriage must have the requisite age and capacity, and none of the restrictions to the validity of a marriage may exist (e.g., consanguinity or prior existing marriage).
What is the burden of proof in a common law marriage claim?
The burden of proving a common law marriage is on the party asserting it.
What principles does Georgia follow regarding the validity of foreign marriages?
Georgia will effectuate marriages from other jurisdictions unless they violate public policy.
Evasion of State Law
Georgia doesn’t recognize marriages by its residents if they go out-of-state to marry in a way that Georgia wouldn’t permit. This prevents residents from evading Georgia’s marriage laws by marrying elsewhere and returning.
What is the effect of annulment on the parties in Georgia?
A decree of annulment has the effect of a total divorce between the parties of a void marriage.
What remedies are available upon annulment in Georgia?
Alimony and property division are not available upon annulment.
Under Georgia law, can annulments be granted if children are born or expected?
No, annulments cannot be granted if children are born or expected as a result of the marriage.
What may Georgia courts enforce regarding rights of unmarried cohabitants?
Georgia courts may enforce domestic partnership agreements supported by grounds of unjust enrichment.
