from SDMB for a nonofficiant type license
http://boards.straightdope.com/sdmb/showpost.php?p=12899374&postcount=120
What is your cite for this?
You seem to be saying that if my fiancée and I gather with my sister and two witnesses and do nothing but sign the license, without performing some type of ceremony, the marriage is not valid. What, in your opinion, constitutes a ceremony that will make the marriage valid? Who determines this, and what would be the consequences of not having a ceremony?
Yes, I am saying that, in Maryland, if you and your fiancée gather with your sister and two witnesses and do nothing but sign the license, without performing some type of ceremony, the marriage is not valid. Under Section 2-401 of the Maryland Family Law Code, a license is required, and under Section 2-403, a license is “to perform a marriage ceremony.” These requirements are in any case implicit in ceremonial marriage: If you don’t have a marriage ceremony, you have not gotten married.
Maryland law does not prescribe any particular form of religious ceremony (if you have a religious ceremony, as I gather is your plan). If your sister is to perform the ceremony, she should simply do it in accordance with the rules of her church.
That depends on the law of the state where you do this. Assuming you do this in Maryland, there are links above to various provisions of the Maryland Code which make a ceremony of some kind necessary. Specifically, your sister’s right to officiate arises under Maryland Family Code section 2-406(2)(i), which provides that “a marriage ceremony may be performed in this state by . . . an official of a religious order or body authorized by the rules and customs of that order or body to perform a marriage ceremony”. There is no other legal basis on which she can officiate, so I think she needs to officiate by performing a marriage ceremony.
Plus, the text of the licence itself requires the officiant to assert that she has united you and your fiancée in marriage; she can’t sign that (with integrity) if in fact she hasn’t married you before signing the certificate.
We can also point to MFC section 2-409, which requires the marriage certificate – not the licence, but the document which the officiant and the witnesses sign to record that the couple are married - to contain “the name, signature, and title of the authorized official who performs the marriage ceremony”. Under the same section, the obligation to file the signed certificate with the court clerk is again imposed on “the authorized official who performs the marriage ceremony”. And there is also a provision that, if the marriage certificate is not filed within six months of the issue of the license, the court clerk is to “attempt to determine whether the marriage ceremony was performed and, if so, the name of the authorized official who performed the marriage ceremony”. There is a consistent thread that the purpose of the marriage certificate is to record the fact that a marriage ceremony has been celebrated, this being the way people get married in Maryland.
In the event of a dispute about the sufficiency of your ceremony the courts would determine whether it was sufficient. As noted in earlier discussion, Maryland law is not very specific about this. The Maryland Family Code section 2-406 says that in the case of a ceremony by a court clerk the ceremony must be “recited”, and therefore it must involve speaking words. It would be wise for your ceremony to be recited also, even though this is not an explicit requirement of the legislation. We should also note section 2-406(g), which refers to “the right of any religious denomination to perform a marriage ceremony in accordance with the rules and customs of the denomination”, so I think your sister would be wise to use a ceremony which conforms to the “rules and customs” of the Unitarian Universalists (though I appreciate that they may not be very prescriptive either).
Beyond that, I think a court would fall back on fundamental legal concepts of what a marriage is. Marriage is founded on the consent of the spouses, so I suggest the ceremony should, at a minimum, include evidence that each spouse consents to marry the other. “I do”, in answer to an appropriately phrased question, will probably suffice.
The courts will probably bend over backwards to find whatever ceremony you do have is sufficient, but this is really not something you want there to be any doubt at all about. A simple approach might be to use a (suitably adapted version of) the ceremony that a court clerk would use, which I imagine is pretty minimal but contains all that it might need to contain.
The consequence of not having a (sufficient) ceremony would be that you probably wouldn’t be married. This probably won’t give rise to much problem in practice, except in the hopefully very unlikely event that you later have a nasty bust-up, and a dispute over property, in which case one of you may find it advantageous to be able to assert the nullity of your marriage.
Plus, your sister would be (technically) exposed to whatever penalties apply in Maryland for making a false declaration in an official record (by certifying that she had united you in marriage when, in fact, she hadn’t).
The possible nullity of your marriage could be further complicated by that fact that you later go through a ceremony in Alaska, believing that ceremony to be a nullity because you are already married. Could the Alaskan ceremony comply with Alaskan requirements for a valid marriage? If so, then you might be married after all, but exposed to whatever penalties Alaska imposes on people who marry but fail to register the marriage. Your sister, if she celebrates the Alaskan ceremony, might also be exposed. Realistically, though, I can’t imagine the Alaskan authorities pursuing this too vigorously.
I am not a Maryland lawyer. I am not an Alaskan lawyer. I am not your lawyer.
These expressions of my unqualified opinion are for discussion only, and are not legal advice, and should not be relied upon. And so forth.
Interesting thread.
Ok, I have a question: I know a couple that live in Virginia (and only in Virginia) and claim to be married by common law. Does Virginia recognize common law marriages? If so, what restrictions apply?
If your friends had been residents of a state which did allow marriage at common law, and they were married at common law there, Virginia would recognise that marriage. But from what you say this isn’t the case.
I say just go for the spaceballs “short short version” in Maryland, then celebrate/have a bigger ceremony on the cruise, IE: (approximated)
Officiant: “Do you ?”
Woman: “I do”
Officiant: “Do you ?”
Man: “I do”
Officiant: “Good, you’re married, kiss her !”