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Divorce, etc. Coffee Superior Court. Before Judge Lott, Senior Judge.
WELTNER, Justice, dissenting.
I dissent.
The parties were divorced. They continued to live together, ostensibly as husband and wife. After a period of time, the former husband underwent a ceremony of marriage with another woman, and the two of them now have a small child.
That finding, of course, had the effect of voiding the ceremonial marriage which Vaughn had undertaken, and imposing upon the child born to the parties all of the disadvantages of what the law terms "illegitimacy."
In a concurring opinion in Johnson v. Green, 251 Ga. 645 (309 SE2d 362) (1983), the writer undertook to set out some of the hazards inherent in the recognition of "common law marriage," and suggested that, while it ought not be abolished by judicial interpretation, it would be entirely appropriate to refashion the standard of evidence required to carry the burden of proof as to the existence of such a marriage. This suggestion was directed specifically to instances such as that before us, where the relationship later insisted upon as a "marriage" commenced in illicit cohabitation.
"There should be, in my opinion, but two instances which enlightened policy can recognize as adequate to carry this burden.
"This first is -- obviously -- proof of a ceremonial marriage in substantial accord with the requirements of statute law.
"The second is the birth of a child or children to the parties." 251 Ga. at 647.
This case, once again, illustrates the pitfalls of "common law marriage," including the bastardization of an innocent child. We do not pursue a policy of fostering marriage when we discount it to a swearing match. A sensible legal system of domestic laws must provide that a person is either married or not married -- one or the other. It should not take a jury trial, with all of its agony, cost, and delay, to answer that simple inquiry.
Douglas W. Mitchell III, for appellee.
Dewey N. Hayes, Jr., Donald A. Starling, for appellant.
Thursday May 21 17:17 EDT

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