1. The allegations of paragraph 5 of the plaintiff’s complaint quoted above contained sufficient allegations of a subsequent common law marriage to withstand the defendant’s motion to dismiss. As to elements of a common law marriage and a thorough discussion of the necessity of an intent to be "presently wed” and not to "wed in the future,” see Peacock v. Peacock, 196 Ga. 441 (26 SE2d 608).
2. The defense of estoppel by judgment is based upon an adjudication by the Superior Court of Fulton County granting custody of the children to the defendant. A transcript of *566the hearing, as well as the defendant’s pleadings and the judgment in such habeas corpus hearing, was attached as an exhibit in support of this defense.
The habeas corpus petition was grounded upon the mother’s right to custody of the children under the original divorce decree. The sole contention made at such hearing by the father was a lack of jurisdiction of the court to hear the issue unless the mother introduced evidence that he had possession of the children in Fulton County when the process in the habeas corpus case was served upon him. No evidence was introduced at such hearing and no issue made as to the second marriage between the parties. While the divorce decree granting custody of the children to the mother would be nullified by her remarriage to the children’s father (McAlhany v. Allen, 195 Ga. 150 (3) (23 SE2d 676); Warren v. Warren, 213 Ga. 81 (97 SE2d 349)), yet such remarriage, if proved, would not have required a judgment giving custody of the children to the father, and at most such judgment would be res judicata only as of the date of such habeas corpus hearing and would not preclude the court in another county from making a different adjudication as to such custody upon the hearing in the divorce proceeding. Compare Ponder v. Ponder, 198 Ga. 781 (2) (32 SE2d 801). It was not error to overrule the wife’s motion to dismiss based upon estoppel by judgment.
Judgment affirmed.
All the Justices concur, except Hawes and Gunter, JJ., who dissent.