A void marriage is a problem for the spouses. It is generally not one for their children.
The Statute
OCGA 19-3-5(a) makes certain marriages void and then adds: “However, the issue of such a marriage born before the marriage is annulled and declared void by a competent court shall be legitimate.” The capacity statute agrees: OCGA 19-3-2(a)(3), which bars marrying while a previous marriage is undissolved, ends with “[n]othing in this paragraph shall be construed to affect the legitimacy of children.”
Georgia Broke With the Common Law
“Georgia abandoned the common-law rule that made the children of a void marriage illegitimate, and adopted the civil-law rule that the issue of certain void marriages, before they were annulled, were to be considered legitimate.” Campbell v. Allen, 208 Ga. 274 (1951). Campbell also refused to distinguish a void ceremonial marriage from a void common law marriage; the rule covers both.
What the Line Actually Is
The dividing line is the ceremony, not what the parents knew. In Brazziel v. Spivey, 219 Ga. 445 (1963), the Supreme Court of Georgia held the legislature “intended to remove the stigma of bastardy from innocent children if their parents go through a marriage ceremony, even though that marriage be void because one of the parties was unable to contract marriage by reason of an existing marriage.”
Comparing a knowingly meaningless ceremony with adultery alone, the Court concluded the General Assembly “created a difference as to the children of these types of relationships and conferred legitimacy upon children of the former.” Whether a knowledge-based distinction should exist, it said, “addresses itself to the General Assembly.”
Why It Matters
In Brazziel, legitimacy decided custody and the father kept the children. “Where a child is legitimate, the father has a claim to parental and custodial rights with respect to the child.” Hall v. Coleman, 242 Ga. App. 576 (2000).
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