Robert Lewis Smith died intestate. Ann Olds filed a petition for letters of administration with the probate court, claiming that she was Robert’s wife.1 After the probate court entered a “Final Order” appointing Ann as the administrator of the estate and issuing Letters of Administration , Timothy Smith —one of Robert’s sons —filed a motion to set aside the order, contending that Ann was not Robert’s surviving spouse. Following an evidentiary hearing, the probate court entered an order finding that there was no common-law marriage between Robert and Ann, setting aside the order appointing Ann as administrator of the estate and revoking the Letters of Administration issued to Ann. Ann challenges the probate court’s ruling on appeal, and we affirm, for reasons that follow. When an “alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common-law marriage existed.”2 Although Georgia does not recognize common-law marriages entered into after January 1, 1997, “otherwise valid common-law marriages entered into prior to January 1, 1997 . . . shall continue to be recognized in this state.”3 As the party asserting the existence of a common-law marriage, Ann “must establish its existence by a preponderance of the evidence.”4 Moreover, an order finding that no common-law marriage existed must be upheld on appeal if there is any evidence to support the finding.5 “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. All three of these elements as set forth in OCGA § 19-3-1 must be met simultaneously.”6 Further, “a legal marital relationship cannot be partial or periodic.”7
Here, Ann testified at the hearing that she and Robert began dating and moved in together in 1993. According to Ann, Robert wanted to marry her, but “he could not get married because he had a warrant out for his arrest . . . and he was afraid to really put his name on anything.” Ann testified that she and Robert lived together as husband and wife, sharing finances and a bed, and raised their daughter together. According to Ann, she and Robert ceased living together for “a few months” in 1996, and they “separated a few times,” but otherwise lived together “off and on” from 1993 until his death in 2006; Ann admitted on cross-examination that she had another boyfriend during a period of time in 2000 when she was separated from Robert. Ann also stated that “everybody in the Winder area and half of Athens that knows them knows her as Robert’s wife.”8
