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A Legal Perspective
Issuing a Marriage License Today
Richard P. Cushing
Township Attorney, Knowlton
Gebhardt & Kiefer
What is a registrar or a mayor to do when a couple wants to say "I do," but the couple is
In New Jersey, same-sex marriages are not permitted. However, this ruling is being challenged and the issue is expected to reach the Supreme Court. |
not the traditional male-female pair? What used to be easy, now presents questions which were unthinkable just a few years ago. As a result, marriage is now a hot topic for municipal officials and their lawyers. In the past, municipal practitioners left marriage issues to divorce lawyers. The only issue that would regularly come up was who in the municipal family could perform the ceremony. But the marital revolution is raising moral and legal issues for city hall.
The big issue nationwide is, of course, same-sex unions. In Asbury Park, the registrar issued a marriage license to two men, and the deputy mayor married them.1 Within days, the State Registrar issued an opinion that registrars who issue marriage licenses to same-sex couples would face consequences.2 San Francisco has permitted same-sex couples to receive marriage licenses, although that action is being challenged.3 The Massachusetts Supreme Court has ruled that the Massachusetts Constitution requires that same-sex couples be granted marriage licenses.4
Here in New Jersey, a Superior Court Judge in Mercer County ruled that same-sex marriages are not permitted under New Jersey law, although this ruling is being challenged and the issue is expected to reach the New Jersey Supreme Court. In Mark Lewis and Dennis Wilson v. Gwendolyn Harris,5 the Law Division found "...the marriage laws of this State, taken as a whole, do not support a conclusion that the legislature intended for same-sex couples to have the authority to marry... [I]t seems clear that the legislature intended marriage certificates to be granted only to couples of the opposite sex."
As a backdrop to the drama of same-sex marriages, New Jersey has adopted the Domestic Partnership Act which grants certain rights to samesex couples. This law becomes effective July 10, 2004. Similarly, traditional marital bonds are being tested by transgender individuals who wish to marry. For example, Mayor Frank Van Horne, the "Marrying Mayor" of Knowlton Township,6 Warren County, has been asked by a woman, who was formerly a man, if she can marry another woman, who was formerly a man. Mayor Van Horne said: "I've been asked to perform a lot of unusual ceremonies. But, hey, I don't care. I'll marry anybody as long as my municipal lawyer says it's okay."
As a backdrop to the drama of same-sex marriages, New Jersey has adopted the Domestic Partnership Act which grants certain rights to same-sex couples.
These types of questions raise novel issues as to what efforts a registrar must take to establish the gender of individuals seeking to be "hitched up," and whether Mayors may have any role in the creation of a Domestic
Partnership. To try to make some sense out of this rapidly changing world of marriage, this article compares the licensing requirements of marriage with those of the new Domestic Partnership Act and explores the steps a registrar must take to comply with these New Jersey laws.
The Creation of a "Marriage" v. The Formation of a "Domestic Partnership" Marriage in New Jersey is created by the combination of both a valid marriage license and a solemnizing ceremony conducted by someone authorized by statute to perform such a ceremony.7 A Domestic Partnership, as anticipated by the new Act, will be created by the single act of issuing a Certificate of Domestic Partnership. "Solemnization" is not required. The Domestic Partnership Act creates a relationship that is not equal in all respects to the status of a New Jersey marriage, but rather one which offers several financial benefits that married couples enjoy, including the ability to file joint state tax returns, secure dependent insurance coverage and/or pension benefits, and enjoy rights to have access to and speak for their partners in certain medical crises.
Marrying Mayors: Moralists or Miscreants? New Jersey statutes authorize Mayors, among others, to "solemnize" marriages.8 But this authority is only permitted for couples who have a valid marriage license. If the Mayor performs the ceremony for someone who does not have a valid marriage license, he or she "shall by guilty of a misdemeanor, and punished by a fine not exceeding $500, or imprisonment not exceeding six months, or both."9
What about ceremonies to celebrate the formation of a Domestic Partnership? Many couples may wish to publicly celebrate their new relationship beyond simply filling out the forms necessary to obtain a Certificate of Domestic Partnership. It appears that since there is no requirement to "solemnize" a Domestic Partnership in order to validate it, there simply are no restrictions on how to celebrate it. Mayors, pastors, rabbis, priests and judges are free to develop whatever procedures they wish to use in these circumstances. However, the Mayor, or other celebrant, should alert the happy couple that the ceremony they perform to "celebrate" the union has
no legal consequence, and does not alter their rights and obligations under the Domestic Partnership Act.
What's a Registrar to Do? Since it is illegal to issue a marriage license to same-sex couples to marry in New Jersey, does the registrar have to confirm that the couple is truly a man and a woman? Many registrars would feel that making a physical or visual inspection is not in their job description.
It is a misdemeanor to knowingly issue a marriage license that violates the New Jersey law.1O A license clerk has a duty to determine whether a couple seeking a marriage license meets the requirements as to age, health and mental capacity.11 And it is now clear that the Office of the Attorney General has taken has taken the legal position that the law of New Jersey does not permit a local registrar to issue a marriage license to same-sex couples.12 How does a licensing clerk or registrar make sure that he or she is not issuing such a license? Or since a similar penalty exists under the new Domestic Partnership Act13, how does the clerk or registrar make sure that the couple conforms to the new Act's requirements?
Happily for registrars, New Jersey law puts the burden on the applicants for both a marriage license or for the Domestic Partnership Certificate to tell the truth. N.J.S.A. 37:1-8 requires the marrying couple to appear before the registrar and attest to the truth of the facts regarding the legality of the marriage. It also requires that a witness of legal age verify the accuracy of the relevant facts. Both the applicants and the witness are subject to the penalties for perjury if they fail to tell the truth to the registrar. A misrepresentation regarding a necessary prerequisite to a marriage license can result in a marriage that is void.14
A registrar has similar obligations in processing a request for a Domestic Partnership Certificate. Even though the Act was specifically enacted for same-sex unions, it also permits opposite-sex couples to apply for the benefits of this status, so long as they are over the age of 62.15 It appears that the law of New Jersey does not specifically address whether a transgendered couple can be "partnered." The answer depends on their ability to affirm at the time of application that they are of the "same sex" or are "over the age of 62," the Domestic Partnership Act's key prerequisites. The penalty of executing a false Affidavit of Domestic Partnership is $1000.16
Prerequisites for a Marriage License v. a Certificate of Domestic Partnership Valid marriage licenses are those obtained from a licensing officer of the municipality where either the bride or groom resides, or where the ceremony is to be performed,17 The New Jersey statutes also require that persons applying for a license affirm that they meet several requirements regarding their age, health and mental competency.18
The old-fashioned requirement that a couple "take a few days to think it over before taking the plunge" is still in effect for New Jersey marriages. The law requires that the couple wait at least 72 hours after applying before they can get a license issued to them.19 The license is valid for a period of 30 days. Marriage of a person under the age of 18 requires the consent of the parents of the guardian of the minor.2O If the minor is under the age of 16, the consent must be in writing and approved by a Family Court Judge.21 But note: the consent and waiting requirements are waived for underage males arrested for impregnating a "single, widowed or divorced female of good repute for chastity." Since the constitutionality of this provision of the statute seems questionable, we recommend a registrar faced with this issue consult with the municipal attorney.
The application and issuance of a Certificate of Domestic Partnership is done all at once. There is no changing your mind after you start this process. The new Act specifies in detail the steps required of both the couple and the local registrar to create a Domestic Partnership. First, the couple must affirm in the Affidavit of Partnership that they have met all of the following requirements:
1. Both persons have a common residence and are jointly responsible for each other, as evidenced by the
a. showing a joint deed, mortgage, lease, or bank account, or
b. designation as a primary beneficiary in the other's will, insurance policy, or retirement plan, or
c. joint ownership of a motor vehicle.
2. Both persons are agreeing to be jointly responsible for each other's basic living expenses.
3. Neither one is married.
4. Neither one is related by blood or affinity up to and including the fourth degree of consanguinity.
5. Both are of the same sex, or they are two people age 62 or more who are not of the same sex.
6. Both are choosing to share each other's lives "in a committed relationship of mutual caring."
7. Both are at least 18 years of age.
8. Both are jointly filing their Affidavit of Domestic Partnership.
9. Neither has been a partner in a Domestic Partnership that was terminated less than 180 days prior to the application, unless the previous partner has died.22
Upon the filing of the Affidavit of Domestic Partnership attesting to all of the requirements listed above, it will be the job of the local registrar to "immediately complete a Certificate of Domestic Partnership," and issue two copies of the Affidavit, the Certificate to the new partners and the Notice of Rights and Liabilities. Copies of these certificates are to be recorded locally and original copies of the Affidavit and the Certificate are to be submitted to the State Registrar.23 What the registrar has thus brought together cannot then be torn asunder except by legal means equivalent to divorce.
Conclusion The Marrying Mayor of Knowlton can continue his marital role with some comfort as long as he makes sure the opposite sex couples he marries have a license. He can also celebrate a domestic partnership union, although doing so has no legal consequences. As of now, he cannot marry same-sex couples. But he need not be concerned as to whether he or his registrar has to verify the gender of the persons to be married. It is up to them to make sure they meet the lawful requirements.
Submitted by: Richard P. Cushing, with assistance from Linda Kragie. Mr. Cushing and Ms. Kragie are attorneys with Gebhardt & Kiefer in Clinton, New Jersey, which specializes in the representation of municipalities throughout New Jersey in litigated matters, and as special counsel. Mr. Cushing is the municipal attorney for five municipalities in Hunterdon and Warren Counties.
1 Star Ledger, March 9, 2004.
2 Letter from State Registrar, Joseph A. Komosinski, to Local Registrars, March 10, 2004.
3 New York Times, Week in Review, March 7, 2004.
41d.
5 Judge Feinberg, November 5, 2003, Docket No. MEL-L-15-03.
6 The Knowlton News, Marriage on the Rocks, November 12, 1998, p.7.
7 N.J.S.A. 37:1-10 and 1-13. This article does not address the concept of common law marriage. But note, that under certain circumstance, courts will recognize other, less common, methods of "solemnization." See e.g. Torres v. Torres, 144 N.J. Super 540 (l976) in which a "marriage contract by proxy" in Cuba fulfilled the requirement.
8 N.J.S.A.37:1-13.
9 N.J.S.A. 37:1-15. Two ministers who performed same-sex marriage ceremonies in New Paltz, N.Y., had misdemeanor charges filed against them by the Ulster County district attorney on March 15, 2004. The Prosecutor charged the ministers with failing to confirm the couples had valid marriage licenses. New York Times, March 16, 2004, p.B1.
10 N.J.S.A. 37: 1-11.
11 "A licensing officer shall issue a license only if it is thus made to appear before him that no legal impediment to the marriage exists." N.J.S.A. 37:1-8. See e.g. Antunes v. Antunes, 23 N.J. Super. 150 (1952) which held that a licensing clerk had the authority to question the validity of a "mail order" divorce.
12 March 9, 2004 letter from Deputy Attorney General DeAlmeida, to Joseph Komosinski, State Registrar of Vital Statistics.
13 The Domestic Partnership law imposes a fine of up to $500 on a local registrar who knowingly submits to the State Registrar a Certificate containing falsehoods.
14 Dacunzo v. Edgye, 19 N.J. 443 (1955)(where a woman misrepresented herself as being single, when she had a husband, the license was void because it was fraudulently obtained.) Where the validity of a marriage is being attacked, the burden of proof is always on the attacking party, rather than on the Defendant. In re Brugnoli, 2 N.J. Eq. 349 (l925).
15 These couples were included in the new Act so that they could enjoy their committed relationship without jeopardizing retirement benefits that would be otherwise lost if they married.
16 Domestic Partnership Act, section 4.
17 N.J.S.A.37:1-2,1-3.
l8 N.J.S.A. 37:1-6, N.J.S.A. 37:1-9.
19 In the case of an emergency, a Superior Court Judge can waive the waiting period. N.J.S.A.37:1-4.
20 N.J.S.A. 37: 1-6.
21 N.J.S.A. 37:1-5 and 1-6.
22 Domestic Partnership Act, section 4.
23 Domestic Partnership Act, sections 7 & 8.
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Article, New Jersey Municipalities Magazine, May 2004 |
