SEEKING TO ANNUL A MARRIAGE? HERE ARE SOME FACTS YOU SHOULD KNOW.
What Is An Annulment and When Is It Allowed Under Georgia Law?An annulment is a legal path to receiving a judicial declaration that a marriage was void at its outset ("void ab initio"). The process of an annulment has its origins in equity, but in Georgia, was recognized by statute in 1952.
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.
What if Children Are Born The Issue of Parties to A Void Marriage?The issue of void marriages are deemed legitimate. A void marriage cannot be annulled if children are born or to be born the issue of the marriage. This rule was designed to protect children so that their parents could not act to delegitimize them. If they were permitted to annul the marriage, the State would be helping them to bastardize their children.
Note: "All children born in wedlock or within the usual period of gestation thereafter are legitimate" under Georgia law. However, since Georgia does not recognize same sex marriages, children born the issue of a same sex marriage (i.e. born to a same sex couple whose marriage license was issued by another state) are not legitimate under Georgia law. As a result, these children, absent the grant of a second parent adoption, are not able to inherit from their second parent (non-biological parent) according to the laws of intestacy as would be a child born the issue of a marriage between a man and a woman.
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.
What Kind Of Relief Is Allowed In An Annulment?A court of equity hearing an action for annulment can determine the rights of the parties in jointly held property and partition it. The Court also has the authority in an action for annulment to restore the status quo as to property brought into the marriage by the parties and to otherwise do equity between them. Additionally, the Court may grant temporary alimony and attorney's fees to a party who defends against an action for annulment.
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.
Does An Annulment Relieve Parties of Criminal Charges?Pursuant to the 1952 Act, a decree of annulment returns the parties to their original status but does not relieve them of criminal charges or responsibilities occasioned by the marriage. These "responsibilities" are not limited to criminal charges but include civil liabilities. Attorney's fees, for example, are allowed under the Georgia Code as a "responsibility occasioned by [the] marriage."