Marriage, Living in Sin and Common Law Marriage

Obviously, if you follow the law, get a license and have the event officiated, you’re married. See O.C.G.A. § 19-3-1 (Requiring parties able to contract, an actual contract and consummation according to law). And with marriage goes the benefits and liabilities. Although not a traditional case, Justice Kennedy concluded Obergfell v. Hodges with the following observations:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.

What about unofficial (or other, e.g. foreign) marriages? A common law marriage is one deemed to be valid under the law even though no marriage license was issued and no legally binding ceremony was performed. In Georgia, common law marriage was abolished as of January 1, 1997. However, the law did not invalidate common law marriages established prior to that date. Specifically, O.C.G.A. § 19-3-1.1 says:

“No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state.”

History. Code 1981, § 19-3-1.1 , enacted by Ga. L. 1996, p. 1414, § 1.

The National Conference of State Legislators (as of the date of this post) indicates common law marriage is recognized in some form in Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas and Utah.

Why is this topic important? For older adults it can be important because the existence of a marriage is often a prerequisite for survivor’s benefits, whether from Social Security, the VA, pension providers or other sources. Further, re-marriage after a spouse’s death will, in many cases, terminate survivor’s benefits. In Medicaid eligibility cases, income and resources can be diverted to a legal spouse without a transfer penalty, but not to an unmarried partner. But on the flip-side, if an unmarried partner goes to a nursing home, the healthy partner’s income and resources are not at-risk for spend down or estate recovery. Laws in some states might also invalidate an estate plan as a result of marriage, or at least give the new spouse a minimum share of the estate after a spouse’s death. And, of course, there is the risk of divorce. In cases where there is significant wealth, couples entering into a late life marriage should consider a prenuptial agreement. A study by S. Brown & M. Wright, Marriage, Cohabitation, and Divorce in Later Life, included the following findings:

Marital dissolution, for instance, has enduring negative effects on individual health in midlife, even for those who remarry. Remarriage offsets only some of the health disadvantage linked to marital disruption, whether through divorce or spousal loss. Time spent in either the divorced or widowed state is related to worse health outcomes, including chronic conditions and mobility limitations.

So, with aging couples, the question sometimes arises – should we get married or live in sin? The answer isn’t simple because marriage (and divorce and living in sin) can have financial consequences, but they can also take an emotional toll on others within the family who have strong-felt but different beliefs. What if your partner’s adult child is “ok” with you marrying his or her parent, but is extremely opposed to you shacking up with his or her parent? Or on the flip-side, what if the adult children are ok with you living in sin, but are concerned about the possibility of a preditor (gold digger) changing your estate plan through marriage? Or what if your partner wants a commitment because he or she wonders “How deep is your love?” The purpose of this post is not to tell you what to do. We’re just saying it’s something worth considering regardless of which direction you take.