dissenting.
1.1 join in Justice Hunt’s dissent. Three of us concluded that the evidence demands a verdict for Ridley and entitles him to a judgment n.o.v. A majority of four has prevailed in holding that the jury’s verdict must be upheld because there is some evidence to support it. The very nature of this dispute illustrates the reasons that I maintain that it is time for a re-examination of common law marriage.
2. There can be no criticism of the reasons for the recognition, at the outset, of common law marriage. It is both a heritage from our frontier days, as well as a means of avoiding the disadvantages of “illegitimacy” that burden the child whose parents have foregone a ceremonial marriage.1 There is, however, substantial need for a new and critical inquiry as to whether prevailing principles of common law marriage serve the present age.
3. This very case presents a strong argument for such a re-assessment, bearing in mind its uncertainties and delays, and the enormity of resources devoted to it. The complaint for divorce was filed in June of 1988. The parties spent three days in trial, calling seven witnesses, *10amassing a transcript of 439 pages, and entering into evidence seventeen exhibits — largely to determine whether or not they were married! And at the dawn of the new year, 1990, that issue remained yet unresolved.
4. The factual circumstances outlined in our recent case of Vaughn v. Vaughn, 255 Ga. 76 (337 SE2d 763) (1985), offer further support:
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.
Soon after that ceremony, Vaughn’s first wife filed an action against him, alleging that the parties had become married “by the common law,” and were then husband and wife, notwithstanding the earlier divorce. She sought alimony and other relief. The question of the alleged marriage was tried by a jury, which found in favor of the first wife.
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.” [Id. at 76-7, dissent.]
Thus, the very purpose of the initial recognition of common law marriage was defeated by the principles that we have developed to preserve it.
Solution
5. Plainly, the law of common law marriage is chaos that cries out for order.2 The materials found in the Appendix represent only eight years of turmoil, and only that disclosed at the appellate level. They reflect documentation of controversies that have been assembled subsequent to our case of Johnson v. Green, 251 Ga. 645 (309 SE2d 362) (1983). In that case, which arose from circumstances similar to this case, the present writer suggested:
If it be the policy of the law to foster marriage as an institution essential to the stability and health of the Repub*11lie, we ill-serve that goal by discounting the existence of this most important of all human relationships to a swearing match — akin to the question of which driver had the green light; or, which of two brawlers struck the first blow; or, how long did the pain of whiplash endure.
Finally, if marriage is a state “not to be undertaken lightly” (as observed at almost every wedding) it should not be too burdensome to require of parties who intend to commit their very lives to each other that they make plain to all the world such an intent by undergoing a ceremony of marriage. [Id. concurrence at 647.]
6. In order to relieve the people and the courts of Georgia from much of the agony, whimsy and cost of disputed common law marriages, and to preserve those of its purposes that yet have merit, we could expand and extend the rule of Brown v. Brown, 234 Ga. 300, 301 (215 SE2d 671) (1975). Specifically, we could adopt a new evidentiary requirement, as follows:
The evidence necessary to prove the conversion of an illicit arrangement into a common law marriage must include (in addition to existing evidentiary requirements) either (1) proof of a bona fide attempt to contract a valid ceremonial marriage; or (2) the birth to the parties (after the commencement of an illicit arrangement) of a child or children.
7. The enlargement of the rule would preserve these virtues:
(a) no child of parents who have not contracted a valid ceremonial marriage would stand in any greater degree of being branded as “illegitimate” than was the case under formerly prevailing principles of common law marriage.3
(b) Similarly, no marriage could be attacked for a technical deficiency inhering in a bona fide attempt to enter into a contract of marriage.4
*12(c) The “frontier tradition” would be maintained. That is, a man and woman who are not in an illicit arrangement still may contract per verba de praesenti to declare themselves husband and wife, which, followed by “consummation according to law” (OCGA § 19-3-1), will create a lawful marriage.5
8. The new rule would eliminate marriage by perjury and caprice. In doing so, it should lend order and stability to marriages undertaken with true intent and clear resolve.
Appendix.
Following our case of Johnson v. Green, 251 Ga. 645 (309 SE2d 362) (1983), our court has been presented with seemingly infinite variations upon the theme of common law marriage. We discuss these here in order to demonstrate the chaos and confusion that pertain, of necessity, when the legal status of marriage — wrapped as it is in emotion, and cloaked in a plethora of property rights — is beclouded by so unruly a doctrine as that of common law marriage.
Witness:
(1) A man was convicted of the murder of a woman who had lived with him. One of his contentions on appeal (although this issue was not reached) was that he and the woman were married by the common law and her adulterous conduct should serve as serious provocation. Crosby v. State, 259 Ga. 822 (389 SE2d 207) (1990).
(2) As part of a divorce action, a woman claimed a house and land bought before they were married to be marital property because she asserted that she and her husband were married by the common law four years prior to their ceremonial marriage. Kuykendall v. Kuykendall, Case No. S90A0266, disposed of by order, February 16, 1990.
(3) A man and woman married, were divorced, and later lived together for several months. A child was born, and subsequently the woman and child moved into the man’s new home. The man claimed a common law marriage, filed for divorce, and sought custody of the child. Blanton v. Blanton, 259 Ga. 622 (385 SE2d 672) (1989).
(4) A man and woman married, produced a child, and separated. A second woman lived with the man and became pregnant. The man died in an airplane crash before completing divorce proceedings *13against his wife. The wife applied to be administratrix of the intestate estate as surviving spouse. The second woman claimed to be the common law wife of the decedent and petitioned the court to remove the first woman as administratrix as next friend of the decedent’s unborn child, who asserted a claim. Simpson v. King, 259 Ga. 420 (383 SE2d 120) (1989).
(5) The parties cohabited and produced a child. The court found that there was no common law marriage. During a temporary hearing, the father stipulated in open court that he was the father ánd agreed to pay $40 a week child support. The trial court entered a final judgment as to child support and visitation, which was reversed as premature and the case remanded. Henderson v. Henderson, 258 Ga. 205 (367 SE2d 40) (1988).
(6) A man and woman lived together for nine years, acquiring property together while she received a widow’s pension from her previous marriage. The man left and married someone else. A jury awarded the woman an equitable division of the mutual property. Henry v. Rice, 258 Ga. XXX (1988).
(7) The parties married, were divorced, remarried others, were divorced from others, cohabited again, and separated again. A jury found a common law marriage and awarded the woman an automobile, $5000 lump sum alimony, and $800 per month periodic alimony. The judgment was affirmed on condition that a provision unauthorized by law (that the periodic alimony award survive the death of the husband and be payable from his estate) be stricken. Foskey v. Foskey, 257 Ga. 736 (363 SE2d 547) (1988).
(8) A woman was awarded temporary alimony based upon her assertion of a common law marriage. Ultimately the trial court denied her complaint for divorce, alimony, equitable division of property, and attorney fees upon proof of her incapacity to marry because of an undissolved ceremonial marriage to one man in 1964 and a subsequent undissolved common law marriage to a second man. Smith v. Moore, 257 Ga. XXVIII (1987).
(9) In a transaction for the sale of a house, a claim for fraud was based upon the agent’s failure to disclose to the purchaser that the seller was the agent’s common law spouse. Smith v. Ross, 255 Ga. 193 (336 SE2d 39) (1985).
(10) Vaughn v. Vaughn, supra, Division 4.
(11) A man died intestate leaving no spouse or children. The administratrix of an estate filed a petition to determine the heirs. An illegitimate child of a deceased brother of the deceased claimed a right to inherit even though his parents’ common law marriage was void (because his father’s previous marriage had not been dissolved). Thompson v. Brown, 254 Ga. 191 (326 SE2d 733) (1985).
(12) A retrial was necessary in a dispute concerning a widower’s *14right to a year’s support because evidence of a common law marriage was excluded from the first trial. Wigley v. Hambrick, 193 Ga. App. 903 (389 SE2d 763) (1989); cert. denied.
(13) After a divorce, a mother was awarded custody of a child. The father sought a change in custody because of a material change in circumstances, claiming that the mother had been living with a man to whom she was not married. The mother’s response was that the relationship is not meretricious because she had entered into a common law marriage. Livesay v. Hilley, 190 Ga. App. 655 (379 SE2d 557) (1989); cert. denied.
(14) A man convicted of theft by taking claimed that the victim was his common law wife. Moore v. State, Court of Appeals Case No. 77148, Jan. 24, 1989, unpublished; cert. denied.
(15) A man claimed heirship as the decedent’s son by a common law marriage. Edwards v. Edwards, 188 Ga. App. 821 (374 SE2d 791) (1988).
(16) A man convicted of engaging in incest with his stepdaughter claimed that there was no proof that the victim was his stepdaughter, as no valid marriage existed between him and the mother of the victim. Argo v. State, 188 Ga. App. 102 (371 SE2d 922) (1988); cert. denied.
(17) A man convicted of burglary and other crimes asserted that one of the state’s witnesses was his common law wife, and claimed a spousal privilege. Brown v. State, 187 Ga. App. 347 (370 SE2d 203) (1988).
(18) A legally separated wife contested a court’s granting the petition of two children for letters of administration on the estate of her deceased husband. The children of the decedent claimed that their mother was married to him by the common law at the time of his death. Wilson v. Willard, 183 Ga. App. 204 (358 SE2d 859) (1987).
(19) A man convicted of burglary claimed that his codefendant was his common law wife, and thus was not compellable as a witness against him. Lattimore v. State, 175 Ga. App. 756 (334 SE2d 701) (1985).
(20) A man convicted of burglary claimed as one of his defenses a common law marriage to the victim, his former wife. He asserted that he could not be charged with committing theft if he took property belonging to a spouse. Calloway v. State, 176 Ga. App. 674, 677 (337 SE2d 397) (1985); cert. denied.
(21) A man convicted of rape claimed a presumption of consent based upon an assertion of common law marriage. Brown v. State, 174 Ga. App. 913 (331 SE2d 891) (1985); cert. denied.
(22) Two children claimed to be heirs to an estate, on the basis that their mother was the widow of the decedent by virtue of a common law marriage. Their claim was challenged by a son of the dece*15dent by a prior marriage. Scott v. Jefferson, 174 Ga. App. 651 (331 SE2d 1) (1985).
(23) Children challenged a petition for a year’s support by the deceased’s widow, claiming that she was not lawfully a widow because their father had not divorced his first wife when he entered into a ceremonial marriage with the woman claiming to be the widow, and that there was no evidence of a common law marriage. Spann v. Clark, 171 Ga. App. 690 (320 SE2d 822) (1984); cert. denied.
(24) A woman made a claim on an estate as the legal widow. A child of another marriage contested her claim, contending that the woman’s purported marriage to the decedent was invalid because of his prior undissolved marriage to another (her mother). The woman responded that the marriage to the other claimant’s mother was in fact void at the outset because of yet another prior marriage and another void divorce. Baker v. Musa, 170 Ga. App. 77 (316 SE2d 178) (1984).
(25) The parties married, were divorced, lived together once again, and separated. The wife sought an equitable distribution of “large amounts of wealth.” The jury found no common law marriage. Johnson v. Johnson, Discretionary Application No. S90D0354, denied January 8, 1990.
(26) A woman claiming the existence of a common law marriage filed for divorce and was awarded $400 a month for two years, and title to a truck. The man challenged the sufficiency of the evidence, which included the testimony of a local attorney as an “expert in domestic law” on the question of whether a common law marriage existed. Robertson v. Robertson, Discretionary Application No. S89D0294, denied August 14, 1989.
(27) A man died, designating his niece as executrix. A woman challenged the will, claiming that she was the common law wife of the deceased. McCune v. Edwards, Discretionary Application No. S89D0276, denied August 11, 1989.
(28) A man died, leaving everything to a named executor. A caveat was filed by “children and alleged children” and another by an “alleged common law wife.” McMillan v. McMillan, Interlocutory Application No. 10262, denied August 8, 1989.
(29) The trial court awarded temporary alimony to a woman who claimed a common law marriage. Edelson v. Edelson, Discretionary Application No. 4616, denied October 24, 1988.
(30) The parties lived together for four years before they were married. Upon divorce, the man was awarded real property, which the woman claimed as her separate estate on the theory that she owned it prior to the marriage. The man, in turn, claimed to be married by the common law at the time she bought the property. Johnson v. Johnson, Discretionary Application No. 4421, denied April 29, 1988.
*16Decided March 9, 1990. E. Thomas Shaffer, Jr., for appellant. W. Louis Sands, for appellee.(31) A will contest between two women, each claiming to be the surviving spouse, was transferred by this court to the Court of Appeals. Clarke v. Clarke, Discretionary Application No. 45354, transferred January 26, 1988.
(32) The parties were divorced, then cohabited, and separated again. The woman filed for a second divorce, claiming a common law marriage. A jury awarded her a divorce, equitable division of property, and alimony. Salaun v. Salaun, Discretionary Application No. 4066, denied June 19, 1987.
(33) The parties married, produced three children, were divorced, and then resumed cohabitation. The woman filed for a second divorce, claiming the existence of a common law marriage. The trial court directed a verdict in favor of the man, concluding that there had never been an agreement to marry, and refusing to allow her to testify that “in her heart and mind” she believed she was married. Jones v. Jones, Discretionary Application No. 4001, denied May 8, 1987.
For a discussion bearing the mark of nineteenth century mores and rhetoric, see Dillon v. Dillon, 60 Ga. 204 (1878):
For years and years, Mr. Dillon lived with Mrs. Dillon as his wife, recognizing and treating her as such. Of her, he begat children; and the parents and children were grouped as a family, and as such lived, openly, in the city of Savannah, the largest city of Georgia, and one of the most respectable cities of the world. If the marriage tie had been wanting, would this have occurred? Could it have occurred, in the midst of a moral and refined community, and under the eye of the police? The jury belonged to the vicinage, and could and did interpret the testimony in the light thrown upon it by the local gloss. They understood what such a mode of living in Savannah meant; whether it meant concubinage or matrimony. . . . Society, and each member of society — the mass and the individual — are benefited by closing the mouth of any man against repudiating his family when they come to him for needed support. If he may cast them off, they will, in many instances, fall a weighty burden on the public. To allow a husband to indulge in scruples about the pedigree of his old wife [he claimed she was of African descent and unable by law to marry him], when her youth, beauty and strength have all waned, and thus escape responding to her claim for reasonable alimony, would be unwise in policy, unsound in principle. [Id. at 206, 207.]
An electronic survey reveals that since 1955, the appellate courts of this state have dealt with common law marriage in no less than 129 cases, in circumstances as varied as the lives of the people.
See note in Sapp v. Solomon, 252 Ga. 532 (314 SE2d 878) (1984):
[T]here is nothing illegitimate about any child who is brought, involuntarily, into this world. The attaint of that term should be reserved, in proper cases, for parents.
Indeed, the first decision on common law marriage in this state, Askew v. Dupree, 30 Ga. 173 (1860), was a response to a challenge to the validity of a marriage performed by a minister who had been stripped of his ministerial functions and powers by his church:
The conclusions to be deduced from the whole matter are these: That marriage is founded in the law of nature, and is anterior to all human law; that in society it is a civil contract; that if the contract is per verba de presentí — that is, I take you to be my wife, and I take you to be my husband — though it be not consummated by cohabitation, or if it be made per verba de futuro, and be consummated, it amounts to a valid marriage, in the absence of all municipal regulations to the contrary; and that notwithstanding there be statutes directing a license to issue, as in this State, and inflicting a penalty on any minister or magistrate who shall unite the parties in *12wedlock, without such license, yet, in the absence of any positive enactment, declaring that all marriages not celebrated in the prescribed form, shall be void; a marriage deliberately and intentionally entered into by the parties, who are able to contract according to the rules of the common law, without conforming to the enactment, is still a valid marriage. [Id. at 189.]
See Lefkoff v. Sicro, 189 Ga. 554 (4) (6 SE2d 687) (1939) (consummation according to law requires actual agreement in words of present tense to be man and wife with intention of assuming marital relationship).