§ 19-4-2.Right to file for annulment or divorce
Chapter 4. Annulment of Marriage · Last amended 1952 · Last verified October 9, 2026
Full Text of § 19-4-2
Plain-English Summary
A void marriage is one the law never recognized — for example, a marriage to someone who already had a living spouse, or one induced by fraud (see §§ 19-3-2 and 19-3-5). This section tells the parties to such a marriage that they have two ways out. They may file a petition for annulment, which asks the court to declare the marriage void. Or they may file a petition for divorce, but only “if grounds for divorce exist.”
The divorce path matters most when annulment is closed. Under § 19-4-1, a court may not grant an annulment when children are born or are to be born as a result of the marriage. In that case divorce is the remaining route. Several grounds in § 19-5-3 mirror the defects that make a marriage void — marriage within the prohibited degrees of kinship, mental incapacity at the time of marriage, and force, menace, duress or fraud in obtaining the marriage among them — and the no-fault ground, that the marriage is irretrievably broken, requires no proof of misconduct.
The two paths end in much the same place. Under § 19-4-5, an annulment decree has the effect of a total divorce and returns the parties to their status before the marriage. Under § 19-5-15, a divorce granted for a cause that made the marriage void from the start annuls the marriage from its inception rather than from the date of the decree. Which path fits a given case depends on its facts.
Frequently Asked Questions
Should I file for annulment or divorce if my marriage is void in Georgia?
This section lets you choose either one; it does not prefer one over the other. Two limits shape the choice. An annulment is not available if children were born or are to be born as a result of the marriage (§ 19-4-1). A divorce requires a ground listed in § 19-5-3. Which path is better for you depends on the facts, and a lawyer can help weigh them.
Do I need grounds for divorce if my marriage was void?
Yes, if you choose the divorce path. The section gives parties to a void marriage the right to file for divorce only “if grounds for divorce exist.” Georgia lists thirteen grounds in § 19-5-3. Several match the defects that make a marriage void, and the last ground — that the marriage is irretrievably broken — requires no proof of fault.
Is a divorce of a void marriage different from an ordinary divorce?
In one respect, yes: timing. Under § 19-5-15, a total divorce usually ends the marriage from the time the decree is rendered. But when the divorce is granted for a cause that made the marriage void originally, the divorce annuls the marriage from its inception. In other respects the case proceeds like any divorce.
Does an annulment have the same effect as a divorce in Georgia?
Largely, yes. Section 19-4-5 says an annulment decree has the effect of a total divorce between the parties of a void marriage and returns them to their original status before the marriage. It adds one limit: an annulment does not relieve the parties of criminal charges or responsibilities caused by the marriage.
Who can file for an annulment in Georgia?
The section gives the right to file to the “parties who enter into a marriage which is declared void by law,” so either spouse may file. If a party is a minor or a person of unsound mind, § 19-4-3 allows a next friend to file the annulment petition on that person’s behalf.
Amendment History
Laws 1952, p. 149, § 2.