DUCKWORTH, Chief Justice.

1. A foreign decree of divorce may be collaterally attacked upon the grounds of fraud in its procurement and lack of jurisdiction without offending the full faith and credit clause of the Constitution of the United States, if there had been no actual notice of the suit or provision for the same to the non-resident defendant, and constructive notice was relied upon to give the foreign court jurisdiction. Green v. Whatley, 158 Ga. 628 ( 123 S.E. 871); Cochran v. Cochran, 173 Ga. 856 ( 162 S.E. 99); Durden v. Durden, 184 Ga. 421 ( 191 S.E. 455); Adams v. Adams, 191 Ga. 537 ( 13 S.E.2d 173); Marchman v. Marchman, 198 Ga. 739 ( 32 S.E.2d 790).

2. Where a marriage has been regularly solemnized and the parties live together as man and wife, there is a presumption that the parties had capacity to contract the marriage, and of the existence of all other necessary facts to render it valid. This presumption can be negatived only by disproving every reasonable possibility against the validity of the marriage. Reed v. Reed, 202 Ga. 508 ( 43 S.E.2d 539); Nash v. Nash, 198 Ga. 527 ( 32 S.E.2d 379); Brown v. Parks, 173 Ga. 228 ( 160 S.E. 238); Callaway v. Cox, 74 Ga. App. 555 ( 40 S.E.2d 578); 25 Am. Jur. 306, § 195. And the presumption of the dissolution of the previous marriage grows stronger with the passage of time where the second marriage is not questioned or attacked. 35 Am. Jr. 308, § 196.

3. To overcome the presumption of validity of the subsequent marriage, there must be plenary proof that neither party to the previous marriage had obtained a divorce, by failing to find any record of divorce in any counties of the jurisdiction where it should have been granted. But it is sufficient, in order to overcome the presumption indulged in favor of the second marriage, to show, by a general search of the court records of the State in which the spouse effecting the second marriage has established residence, that no divorce has been granted. 35 Am. Jur. 326, § 219; 34 A.L.R. 495; 77 A.L.R. 741.

4. In view of what is said in headnote 1 above, it was clearly error for the court to have refused to allow the jury to consider the evidence as to fraud in the procurement of the divorce in Tennessee. And, although plenary proof would be required to overcome every reasonable possibility of a divorce having been obtained elsewhere, it is apparent from the testimony of both the husband and wife, given at the trial, that the Tennessee divorce was the only divorce proceeding ever instigated by either party. The trial court, therefore, erred in failing to grant the motion for new trial as amended.

Judgment reversed. All the Justices concur. Wyatt, J., concurs in the judgment only.

No. 16946. FEBRUARY 16, 1950. REHEARING DENIED MARCH 15, 1950.

DUCKWORTH, Chief Justice.

STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE.

This is a suit in equity, seeking to cancel an alleged void marriage, to recover assets belonging to the estate of Mary A. George, deceased, and for other equitable relief. The issues were tried before a jury, which returned a verdict for the defendant.

It appeared that the defendant in error, Eddie Joseph Thomas, who was also the defendant in the lower court, had married the deceased in Georgia on January 11, 1932; and had previously been married to one Minnie Union in Cleveland, Ohio, on April 11, 1918, but had later divorced her.

The plaintiff in error, after being duly appointed and qualified as temporary administrator of the estate of the deceased, made a demand on the defendant for her property, and brought this equitable action, alleging that the marriage of the defendant to the deceased was void. On the trial the only issue actually before the court and jury was whether or not the Tennessee divorce decree should be set aside on the ground of fraud.

Numerous documents, affidavits, and conflicting testimony as to the whereabouts affidavits, and residences of the parties during the period, April 11, 1918, to June 18, 1931, were presented in an effort to show the invalidity of the divorce obtained in Tennessee. However, the court ruled and charged the jury that the evidence submitted by the plaintiff was not legally sufficient to overcome the presumption of legality of the alleged divorce decree in Tennessee, on the basis of residence and domicile of the parties at that time, and upon the evidence presented to the Tennessee court to obtain the divorce decree; but that the jury should consider everything submitted in evidence which would show whether or not the defendant in the divorce action, who was a non-resident, "was not served with notice of the pendency of the Tennessee action as provided by the laws of the State of Tennessee"; and that, if the service was not according to the laws of that State, or obtained by fraud, then the plaintiff should prevail.

The jury decided the issue in favor of the defendant, and the case is before this court on exceptions to the refusal to grant the plaintiff's motion for new trial as amended.