dissenting.
Although I would concur in Divisions 2 through 6, I respectfully dissent because I cannot concur in Division 1, which would leave consideration of the remaining enumerations of error moot.
Proof of the element of Code-specified family relationship must be shown beyond a reasonable doubt. OCGA § 16-1-5 (1983). See Cook v. State, 11 Ga. 53, 56 (1852). In order to prove the required father/stepdaughter relationship, there must be, for one thing, evidence of marriage between the defendant and the mother of the prosecutrix. Wilkins v. State, 96 Ga. App. 841 (2) (101 SE2d 912) (1958).
OCGA § 19-3-2 (3), which applies to common law as well as ceremonial marriages, Hiter v. Shelp, 129 Ga. App. 401, 402 (199 SE2d 832) (1973), requires that “a person . . . [h]ave no living spouse of a previous undissolved marriage,” and that “[t]he dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.” Defendant and the mother of the prosecutrix had not entered into a ceremonial marriage, although there was sufficient evidence to show a common law “marriage” in that they held themselves out as husband and wife. But there was undisputed testimony by the prosecutrix, her mother, and defendant that defendant had previously been married, defendant’s wife was *106still living, as far as he knew, and he had not obtained a divorce. It was not established that nothing had been heard from her for seven years so as to raise any presumption that she was dead. There was merely testimony, by defendant, that he had last seen her in 1972 and “[s]he lives in Wisconsin.” No evidence of dissolution of that marriage was presented. A prior undissolved marriage renders a subsequent “marriage” void. Lovett v. Zeigler, 224 Ga. 144 (160 SE2d 360) (1968); Kicklighter v. Kicklighter, 217 Ga. 54, 59 (3) (121 SE2d 122) (1961); Clark v. Cassidy, 62 Ga. 407, 412 (5) (1879).
Decided July 15, 1988 Rehearing denied July 28, 1988 Virgil L. Brown, for appellant. Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.Thus, because the legal impediment of defendant’s prior dissolved marriage had not been removed, a valid common law marriage between defendant and the prosecutrix’ mother never arose. The required relationship for conviction of incest is absent. This element cannot be supplied by a presumption against defendant (as to the validity of the second “marriage”) in this criminal case, absolving the State of proving all the elements of OCGA § 16-6-22 beyond a reasonable doubt.
I am authorized to state that Judge Carley and Judge Sognier join in this dissent.