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Georgia Annulments
Annulments in Georgia

Annulments of marriage are uncommon in Georgia, but the routine is still available when a party has grounds for the action. The legal theory underlying annulment is that the marriage was never valid to begin with, which means that in the eyes of the law the marriage never existed. In legal terms, marriages subject to annulment are classified as either void or voidable. An action for an annulment must be started by a certain time, and that time limit depends on the type of marriage entered into and the jurisdiction.

Like many states, Georgia law disfavors annulment. The courts look at annulment requests very skeptically and require a lot of strong proof.

The Georgia Code, 19-4-1 et seq., describes the laws on annulment.

According to Section 19-4-1 of the official code: “Annulments of marriages [in Georgia] declared void by law may be granted by the superior court, except that annulments may not be granted in instances where children are born or are to be born as a result of the marriage.” If the couple has children, or if the wife is already pregnant, Georgia law prohibits annulment. In this situation, the couple must divorce to end the marriage.

If the cohabitation of the parents is in the best interests of the child or future child, a court may not grant an annulment of marriage in Georgia. Yet, these cases are rare, and courts normally grant an annulment of marriage in Georgia in the following cases, according to Section 19-3-2 of the official code:

  • a parent has married a child, a parent has married a stepchild, a grandparent has married a grandchild, or an aunt or uncle has married their nephew or niece;
  • either party did not have mental capacity during the contract;
  • either party was under 16 when they entered the marriage;
  • either party was forced into the marriage;
  • either party entered into the contract using fraud;
  • there was bigamy

If an underage person marries without parental consent, then that parent (known in Georgia as a "next friend") may file the annulment petition.

In Georgia, a marriage can be annulled if it is void, meaning that it is prohibited by law or can never be valid.

Courts may not necessarily grant annulments even if one of the above circumstances exists. For instance, a person misled by fraud who chooses to live in a marital relationship even after learning about the fraud ratifies the marriage; it can't be annulled. In this, the wronged spouse waives the complaint by opting to live with the person who perpetrated the fraud.

In Georgia, an annulment has the same effect as a divorce. Both parties become single again and can remarry. The legitimacy of children is not a question because Georgia prohibits annulment in cases where the parties have children or the wife is pregnant. This means the couple must divorce and the court will then decide custody, child support, and visitation. The children born as the product of a void marriage, before it's annulled, are legitimate.

Many state courts lack statutory authority to award alimony or divide property or debts in an annulment. However, Georgia courts can equitably divide a couple’s joint property and debts if the marriage is annulled. The courts cannot, however, award permanent alimony because alimony is a remedy available from one former spouse to another; an annulment, by comparison, says that the parties were never spouses at all. Nonetheless, a Georgia court may require the wealthier spouse to help the poorer spouse pay attorney fees so the poorer spouse may continue litigating the case.

Procedure

Georgia annulment proceedings follow the same rules as divorce actions, so the petitioner follows the rules for creating the correct documents, service, and procedure. The spouse who wants the annulment files and serves a petition for annulment. If the other spouse files a response opposing the request, the petitioner may possibly have a right to a jury trial.

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