In re Estate of Love, 274 Ga

App. 316, 618 S.E.2d 97, 2005 Ga. App. LEXIS 768 (2005). In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement, and all three of these elements as set forth in O.C.G.A. 295 19-3-1 Common-law Marriage (Cont’d) § 19-3-1 must be met simultaneously. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97, 2005 Ga. App. LEXIS 768 (2005). Evidence tending to show the existence of a common law marriage may include such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage. In re Estate of Love, 274 Ga. App. 316, 618 S.E.2d 97, 2005 Ga. App. LEXIS 768 (2005). Requirements of common-law marriage. — Three requirements of law must be met, all at one time, in order for there to be a common-law marriage. Brown v. Brown, 234 Ga. 300, 215 S.E.2d 671, 1975 Ga. LEXIS 1111 (1975); Evans v. Marbut, 140 Ga. App. 329, 231 S.E.2d 94, 1976 Ga. App. LEXIS 1455 (1976), cert. dismissed, 238 Ga. 583, 234 S.E.2d 506, 1977 Ga. LEXIS 1113 (1977); Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675, 1979 Ga. App. LEXIS 2527 (1979). O.C.G.A. § 19-3-1 establishes the three essential elements of a marriage in this state, all of which must be met during one period of time in order to prove a common law marriage. Edwards v. Edwards, 188 Ga. App. 821, 374 S.E.2d 791, 1988 Ga. App. LEXIS 1228 (1988). Essential elements of a marriage are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. These requirements must be satisfied simultaneously in order for a marriage to exist. Brown v. Carr, 198 Ga. App. 567, 402 S.E.2d 296, 1991 Ga. App. LEXIS 201 (1991). No common law marriage. — There was evidence supporting the finding that an administrator and a decedent were not common-law spouses. The couple separated numerous times, and the administrator had a boyfriend during one separation, filed tax returns as a single person, and did not list the decedent as the father on her daughter’s birth certificate or give her his last name; furthermore, the ad- ministrator was the only person who testified in support of her common-law marriage, while the remaining two witnesses testified that neither the administrator nor the decedent held themselves out as husband and wife. In re Estate of Smith, 298 Ga. App. 201, 679 S.E.2d 760, 2009 Ga. App. LEXIS 639 (2009). Appellant and the decedent did not have a common law marriage despite their long cohabitation and the appellant’s testimony that they had exchanged rings; the decedent’s sister and brother testified that the decedent never referred to the appellant as the decedent’s wife, never mentioned the private vows, and specifically denied that they were married. Further, the couple separated and had relationships with other people at times. In re Estate of O’Connell, 354 Ga. App. 333, 840 S.E.2d 730, 2020 Ga. App. LEXIS 156 (2020). Cohabitation It is not sufficient to agree to present cohabitation and future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed. Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608, 1943 Ga. LEXIS 347 (1943). Fact of cohabitation is essential in establishing common-law marriage in this state. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916, 1951 Ga. LEXIS 325 (1951); Fireman’s Fund Ins. Co. v. Smith, 151 Ga. App. 270, 259 S.E.2d 675, 1979 Ga. App. LEXIS 2527 (1979). Agreement of marriage may be inferred from cohabitation and reputation unless there is other evidence indicating that such an agreement was not present. In order for a relationship based upon repute and cohabitation to obtain the status of marriage at least one of the parties must have believed in good faith that their marital agreement made them husband and wife. Kersey v. Gardner, 264 F. Supp. 887, 1967 U.S. Dist. LEXIS 11006 (M.D. Ga. 1967). Marriage may be inferred from proof of cohabitation, and that the parties held themselves out to the world as husband and wife. Such proof may be made by general repute among neighbors and oth- 296 ers in a position to know the facts. Simeonides v. Zervis, 127 Ga. App. 506, 194 S.E.2d 324, 1972 Ga. App. LEXIS 930 (1972). Informal agreement not consummated by cohabitation is insufficient to establish common-law marriage. Tabor v. Fowler, 119 Ga. App. 259, 167 S.E.2d 220, 1969 Ga. App. LEXIS 1066 (1969). Common-law marriage not negated by plans for marriage ceremony. — When the probate court was clearly authorized to determine from the evidence both that decedent and a woman had intended to live together as husband and wife subsequent to decedent’s divorce from his first wife and that they actually had done so, the fact that they planned at some point in the future to secure a license and formalize their union with a ceremonial marriage did not negate the existence of a common-law marriage. Brown v. Carr, 198 Ga. App. 567, 402 S.E.2d 296, 1991 Ga. App. LEXIS 201 (1991). Woman’s statement that she and decedent had “talked some about getting married but never did it” did not necessarily negate the existence of a common-law marriage relationship for a couple may enter into such a relationship yet nevertheless discuss and plan a marriage ceremony for the purpose of formalizing the arrangement. Georgia Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 403 S.E.2d 235, 1991 Ga. App. LEXIS 307 (1991). Presumption when only proof in case is of continuous cohabitation. — When only proof in case is of continuous 19-3-1 cohabitation, presumption is that it was lawful. When to this proof is added some affirmative proof of holding themselves out as man and wife, it adds so much to the force of presumption, and length of time strengthens the probative force of the presumption. This presumption of marriage from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence. Simeonides v. Zervis, 127 Ga. App. 506, 194 S.E.2d 324, 1972 Ga. App. LEXIS 930 (1972). Insufficient evidence of common law marriage. — Absence of proof of entry into a present marriage contract resulted in the affirmation of the trial court’s finding that the tenant was not the common law spouse of the decedent. In re Estate of Legrand, 259 Ga. App. 67, 576 S.E.2d 54, 2002 Ga. App. LEXIS 1625 (2002). Same Sex Marriage Lesbian marriages. — Attorney General, that is, the State of Georgia’s interest, as an employer in promoting the efficiency of the Attorney General’s important public service outweighed the plaintiff’s personal associational interests in a lesbian marriage. Shahar v. Bowers, 114 F.3d 1097, 1997 U.S. App. LEXIS 13069 (11th Cir. 1997), cert. denied, 522 U.S. 1049, 118 S. Ct. 693, 139 L. Ed. 2d 638, 1998 U.S. LEXIS 83 (1998).