Marriage license

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Marriage License from the State of Georgia

A marriage license (American English) or marriage licence (British English) is a document issued, either by a church or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between countries and has changed over time. Marriage licenses began to be issued in the Middle Ages, to permit a marriage which would otherwise be illegal (for instance, if the necessary period of notice for the marriage had not been given).

Today, they are a legal requirement in some jurisdictions and may also serve as the record of the marriage itself, if signed by the couple and witnessed.

In other jurisdictions, a license is not required. In some jurisdictions, a "pardon" can be obtained for marrying without a license, and in some jurisdictions, common-law marriages and marriage by cohabitation and representation are also recognized. These do not require a marriage license. There are also some jurisdictions where marriage licenses do not exist at all and a marriage certificate is given to the couple after the marriage ceremony did take place.

Article 16 of the Universal Declaration of Human Rights declares that "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses."[1]

History[edit]

For most of Western history, marriage was a private contract between two families. Until the 16th-century, Christian churches accepted the validity of a marriage on the basis of a couple’s declarations. If two people claimed that they had exchanged marital vows—even without witnesses—the Catholic Church accepted that they were validly married.

Some states in the US hold that public cohabitation can be sufficient evidence of a valid marriage. Marriage license application records from government authorities are widely available starting from the mid-19th century. Some are available dating from the 17th century in colonial America.[2] Marriage licenses have been required since 1639 in Massachusetts, with their use gradually expanding to other jurisdictions.[3]

United Kingdom[edit]

England & Wales[edit]

A requirement for banns of marriage was introduced to England and Wales by the Church in 1215. This required a public announcement of a forthcoming marriage, in the couple's parish church, for three Sundays prior to the wedding and gave an opportunity for any objections to the marriage to be voiced (for example, that one of the parties was already married), but a failure to call banns did not affect the validity of the marriage.

Marriage licenses were introduced in the 14th century, to allow the usual notice period under banns to be waived, on payment of a fee and accompanied by a sworn declaration, that there was no canonical impediment to the marriage. Licenses were usually granted by an archbishop, bishop or archdeacon. There could be a number of reasons for a couple to obtain a license: they might wish to marry quickly (and avoid the three weeks' delay by the calling of banns); they might wish to marry in a parish away from their home parish; or, because a license required payment, they might choose to obtain one as a status symbol.

There were two kinds of marriage licenses that could be issued: the usual was known as a common license and named one or two parishes where the wedding could take place, within the jurisdiction of the person who issued the license. The other was the special license, which could only be granted by the Archbishop of Canterbury or his officials and allowed the marriage to take place in any church.

To obtain a marriage license, the couple or more usually the bridegroom, had to swear that there was no just cause or impediment why they should not marry. This was the marriage allegation. A bond was also lodged with the church authorities for a sum of money to be paid if it turned out that the marriage was contrary to Canon Law. The bishop kept the allegation and bond and issued the license to the groom, who then gave it to the vicar of the church, where they were to get married. There was no obligation, for the vicar to keep the license and many were simply destroyed. Hence, few historical examples of marriage licenses, in England and Wales, survive. However, the allegations and bonds were usually retained and are an important source for English genealogy.

Hardwicke's Marriage Act 1753 affirmed this existing ecclesiastical law and built it into statutory law. From this date, a marriage was only legally valid, if it followed the calling of banns in church or the obtaining of a license—the only exceptions being Jewish and Quaker marriages, whose legality was also recognized. From the date of Lord Hardwicke's Marriage Act, up to 1837, the ceremony was required to be performed in a consecrated building.

Since July 1, 1837, civil marriages have been a legal alternative to church marriages, under the Marriage Act 1836, which provided the statutory basis for regulating and recording marriages. So, today, a couple has a choice between being married in the Anglican Church, after the calling of banns or obtaining a license or else, they can give "Notice of Marriage" to a civil registrar. In this latter case, the notice is publicly posted for 15 days, after which a civil marriage can take place. Marriages may take place in churches other than Anglican churches, but these are governed by civil marriage law and notice must be given to the civil registrar in the same way. The marriage may then take place without a registrar being present, if the church itself is registered for marriages and the minister or priest is an Authorised Person for marriages.

The license does not record the marriage itself, only the permission for a marriage to take place. Since 1837, the proof of a marriage has been by a marriage certificate, issued at the ceremony; before then, it was by the recording of the marriage in a parish register.

The provisions on civil marriage in the 1836 Act were repealed by the Marriage Act 1949. The Marriage Act 1949 re-enacted and re-stated the law on marriage in England and Wales.

Scotland[edit]

Marriage law and practice in Scotland differs from that in England and Wales. Historically, it was always considered legal and binding for a couple to marry by making public promises, without a formal ceremony but this form has not been available since 1940. More recently "marriage by cohabitation with repute" has also been abolished for any relationship commenced since 2006. Church marriages "without proclamation" are somewhat analogous to the English "marriages by licence", although the permission to perform them is not a church matter. Religious marriages in Scotland have never had a restriction on the place in which they are performed. Marriages in Scotland normally require between 2 and 6 weeks’ notice to the district registrar depending on the previous marital status and other procedural matters usually involving the country of residence and the nationality of the parties. Marriages with less than the normal amount of notice require the permission of the Registrar General.

United States[edit]

In the United States, until the mid-19th century, common-law marriages were recognized as valid, but thereafter some states began to invalidate common-law marriages. Common-law marriages, if recognized, are valid, notwithstanding the absence of a marriage license.

The specifications for obtaining a marriage license vary between states. In general, however, both parties must appear in person at the time the license is obtained; be of marriageable age (i.e. over 18 years; lower in some states with the consent of a parent); present proper identification (typically a driver's license, state ID card, birth certificate or passport; more documentation may be required for those born outside of the United States); and neither must be married to anyone else (proof of spouse's death or divorce may be required, by someone who had been previously married in some states).

The US states of Connecticut, Wisconsin, Indiana, Oklahoma, Massachusetts, Mississippi[4][5]and the District of Columbia once required blood tests before issuing a marriage license, but such requirements have since been abolished.

Many states require 1 to 6 days to pass between the granting of the license and the marriage ceremony. After the marriage ceremony, both spouses and the officiant sign the marriage license (some states also require a witness). The officiant or couple then files for a certified copy of the marriage license and a marriage certificate with the appropriate authority. Some states also have a requirement that a license be filed within a certain time after its issuance, typically 30 or 60 days, following which a new license must be obtained.

Marriage licenses in the United States fall under the jurisdiction of the state in which the ceremony is performed; however, the marriage is generally recognized across the country. In some instances, as is the case with same-sex marriages, other states may not recognize a marriage license from another state.[6] The Full Faith and Credit Clause of the US Constitution has not been held to require states to recognize all marriage licenses of other states.[7][8][9] The state in which they are married holds the record of that marriage. Traditionally, working with law enforcement was the only means of searching and accessing marriage license information across state lines.[10]

Controversy in the US[edit]

Some groups believe that the requirement to obtain a marriage license is unnecessary and/or immoral. The Libertarian Party, for instance, believes that marriage should be a matter of personal liberty, not requiring permission from the state.[11][12] Libertarians argue that marriage is a right, and that by allowing the state to exercise control over marriage, it is implied that we merely have privilege, not the right, to marry. As an example, those born in the US receive a birth certificate, not a birth license.[13] Some Christian groups also argue that a marriage is a contract between a man and a woman presided over by God, so no authorization from the state is required. In some US states, the state is cited as a party in the marriage contract[14] which is seen by some as an infringement.[15]

Marriage licenses have also been the subject of controversy for affected minority groups. Perhaps most notably, California's Proposition 8 has been the subject of heavy criticism by advocates of same-sex marriage.[16] including the lesbian, gay, bisexual, and transgender (LGBT) community whose ability to marry is often limited by state regulations.

In October 2009, Keith Bardwell, a Louisiana justice of the peace, refused to issue a marriage license to an interracial couple, prompting civil liberties groups, such as the NAACP and ACLU, to call for his resignation or firing.[17][18] Bardwell resigned his office on November 3.[19]

In the state of Pennsylvania, self-uniting marriage licenses are available which require only the signatures of the bride and groom and witnesses. Although this is an accommodation for a Quaker wedding, any heterosexual couple is able to apply for it.

The Netherlands and Belgium[edit]

In the Netherlands and Belgium, couples intending to marry are required to register their intention beforehand, a process called "ondertrouw".

See also[edit]

People

Notes[edit]

  1. ^ "The Universal Declaration of Human Rights". United Nations. Retrieved 26 December 2013. 
  2. ^ Szucs, Loretto Dennis, and Sandra Hargreaves Luebking. The Source: A Guidebook to American Genealogy. Provo, UT: Ancestry, 2006. Pages 87 to 103.
  3. ^ Legislative Guide to Marriage Law, Iowa Legislative Services, Legal Services Division.
  4. ^ [1]
  5. ^ [2]
  6. ^ "Recognition of Existing Same-Sex Marriages". Retrieved 4 July 2012. 
  7. ^ "'Full Faith and Credit'--A Commentary by Prof. Lea Brilmayer". Retrieved 17 Dec 2013. 
  8. ^ Reynolds, William L.; Richman, William M. (2005). "Family Law: A Special Full Faith and Credit Problem". The Full Faith and Credit Clause: A Reference Guide to the United States Constitution. Reference guides to the United States Constitution. Greenwood Publishing Group. p. 125. ISBN 9780313315411. ISSN 1539-8986. 
  9. ^ Adam Liptak (March 17, 2004). "Bans on Interracial Unions Offer Perspective on Gay Ones". New York Times. 
  10. ^ "Marriage Records Records Retrieval". Retrieved 2011-09-05. 
  11. ^ Statement of Principles; 1.3 Personal Relationships
  12. ^ Michael Badnarik. Michael Badnarik's Constitution Class. Event occurs at 00:06:43. Retrieved 2010-07-26. "If you go to a wedding, how many people are in that contract? Well you've got the man, you've got the woman, but that's not all you've also got the state! The state is there, giving you permission. Why? Because you asked." 
  13. ^ is an example of how Democrats and Republicans are a false dichotomy. Both believe that marriage is a "privilege" granted by the State through issuance of a license. They only disagree over who should be issued a marriage license! In true contrast, Libertarians believe that marriage is a "human right", and that the state has no authority to infringe upon this right by requiring any couple to first obtain "permission" (a license).
  14. ^ Information from Ohio Legal Services
  15. ^ Arguments against marriage licenses, from Mercy Seat church, Wisconsin
  16. ^ Same-sex marriage activists seek repeal of California’s Prop. 8
  17. ^ Justice stands by refusal to give interracial couple license to wed
  18. ^ Heat Builds in Interracial Marriage Denial
  19. ^ "Justice of peace in marriage flap resigns". United Press International. November 3, 2009. Retrieved November 4, 2009. 

References[edit]

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