If the person suing you for divorce still had a living spouse from an earlier marriage when the two of you married, that is a defense, and the burden of clearing it up is not yours.
What the Statute Says
Under OCGA 19-3-2(a)(3), a person can only contract marriage if he or she has “no living spouse of a previous undissolved marriage.” The statute goes on to place the burden: “The dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.”
So once an earlier marriage is shown, your spouse has to prove it ended. Saying it ended is not enough.
How That Plays Out
In Stern v. Stern, 235 Ga. 212 (1975), a wife filed for divorce, custody, and support. Her husband moved to dismiss, showing she had gone through an earlier ceremonial marriage to a man who was still living. She admitted the marriage but testified she had been divorced from him in Forsyth County. She produced no decree.
The trial judge gave her ten days to produce a certified copy of it. None ever came, and the Georgia Supreme Court held he was right to deny her the temporary relief she had asked for.
It Reaches the Money Too
The consequences are not limited to the divorce itself. In Christopher v. Christopher, 198 Ga. 361 (1944), the Court held that because of the wife’s “existing undissolved marriage with her first husband, she was incompetent to contract marriage with another,” and “[n]ot being his wife, she was not entitled to a divorce, alimony, or attorney’s fees.”
One Thing to Watch
Raising this early does not end the case forever. Stern also held that the wife could still offer proof of a valid marriage at the final hearing, because the only thing before the court that day was temporary relief.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!