Divorce Proceeds for Common Law Marriage

Despite a 1986 Florida divorce decree, a couple has a valid common law marriage under Georgia law where they lived together after a 1990 “renewal” of their marriage vows in a religious ceremony, and the Chesapeake Circuit Court says husband’s divorce action will proceed forward as any divorce action in Virginia.

A marriage’s validity is to be determined by the law of the state where the marriage took place, unless the result would be repugnant to Virginia public policy. The state of Georgia recognized common law marriage prior to Jan. 1, 1997; any otherwise valid common law marriage entered into before Jan. 1, 1997, continues to be recognized as valid. The party asserting a common law marriage must establish its existence by a preponderance of the evidence.
The court has considered the law of the state of Georgia and finds that under Georgia law, the parties met the three prerequisites to a valid marriage – the parties were able to contract; the parties lived together as man and wife; and the parties consummated this agreement simultaneously according to law. This all occurred prior to Jan. 1, 1997 and thereafter. Therefore, a common law marriage between the parties exists under Georgia law.

Applying full faith and credit, the court finds that such is not contrary to the public policy of Virginia. A common law marriage that is valid under the laws of the jurisdiction in which it was created is valid in Virginia. Therefore, the parties are validly married here for the purpose of dissolving their marriage, determining the issues of spousal support and equitable distribution, and all other issues arising concurrently with the divorce action.
In the alternative, or in addition to the finding of a common law marriage in Georgia, the court finds that husband is estopped from attacking the validity of the marriage by his conduct. Husband became aware of the Florida divorce decree in 2011; husband kept this knowledge from the wife and his own lawyer until he determined that reconciliation would not occur under terms he wanted. Wife only became aware of the divorce decree in 2012 during these proceedings.

This matter will proceed forward as any divorce action to dissolve a marriage and adjudicate the rights and responsibilities of the parties.

Richardson v. Richardson (Smith) No. CL 09-2135, Feb. 21, 2014; Chesapeake Cir.Ct.; A. Bartlett Keil, Kristen D. Hofheimer for the parties. VLW 014-8-019, 3 pp.