Marriage Issues Today


Webmaster's Note: It is ironic to note that in a day and age where homosexuals are fighting tooth and nail to be recognized by our government, Christians are beginning a great exodus. We are beginning to realize that we don't need governments stamp of approval on our marriage. To do so, only invites a 3rd party into our sacred union. And then there are the issues of whether or not the fruits of the marriage (children) are now state property. The articles below are the first of the essays that will address these issues. (Note: These authors are not in any way affiliated with The Church of the Holy Word.)

Table of Contents

Should "Marriage" Even Be Defined in Secular Law?

Five Reasons Why Christians Should
Not Obtain a State Marriage License
by Pastor Matt Trewhella

Every year thousands of Christians amble down to their local county courthouse and obtain a marriage license from the State in order to marry their future spouse. They do this unquestioningly. They do it because their pastor has told them to go get one, and besides, "everybody else gets one." This pamphlet attempts to answer the question - why should we not get one?

1. The definition of a "license" demands that we not obtain one to marry. Black's Law Dictionary defines "license" as, "The permission by competent authority to do an act which without such permission, would be illegal." We need to ask ourselves- why should it be illegal to marry without the State's permission? More importantly, why should we need the State's permission to participate in something which God instituted (Gen. 2:18-24)? We should not need the State's permission to marry nor should we grovel before state officials to seek it. What if you apply and the State says "no"? You must understand that the authority to license implies the power to prohibit. A license by definition "confers a right" to do something. The State cannot grant the right to marry. It is a God-given right.

2. When you marry with a marriage license, you grant the State jurisdiction over your marriage. When you marry with a marriage license, your marriage is a creature of the State. It is a corporation of the State! Therefore, they have jurisdiction over your marriage including the fruit of your marriage. What is the fruit of your marriage? Your children and every piece of property you own. There is plenty of case law in American jurisprudence which declares this to be true.

In 1993, parents were upset here in Wisconsin because a test was being administered to their children in the government schools which was very invasive of the family's privacy. When parents complained, they were shocked by the school bureaucrats who informed them that their children were required to take the test by law and that they would have to take the test because they (the government school) had jurisdiction over their children. When parents asked the bureaucrats what gave them jurisdiction, the bureaucrats answered, "your marriage license and their birth certificates." Judicially, and in increasing fashion, practically, your state marriage license has far-reaching implications.

3. When you marry with a marriage license, you place yourself under a body of law which is immoral. By obtaining a marriage license, you place yourself under the jurisdiction of Family Court which is governed by unbiblical and immoral laws. Under these laws, you can divorce for any reason. Often, the courts side with the spouse who is in rebellion to God, and castigates the spouse who remains faithful by ordering him or her not to speak about the Bible or other matters of faith when present with the children.

As a minister, I cannot in good conscience perform a marriage which would place people under this immoral body of laws. I also cannot marry someone with a marriage license because to do so I have to act as an agent of the State! I would have to sign the marriage license, and I would have to mail it into the State. Given the State's demand to usurp the place of God and family regarding marriage, and given it's unbiblical, immoral laws to govern marriage, it would be an act of treason for me to do so.

4. The marriage license invades and removes God-given parental authority. When you read the Bible, you see that God intended for children to have their father's blessing regarding whom they married. Daughters were to be given in marriage by their fathers (Dt. 22:16; Ex. 22:17; I Cor. 7:38). We have a vestige of this in our culture today in that the father takes his daughter to the front of the altar and the minister asks, "Who gives this woman to be married to this man?"

Historically, there was no requirement to obtain a marriage license in colonial America. When you read the laws of the colonies and then the states, you see only two requirements for marriage. First, you had to obtain your parents permission to marry, and second, you had to post public notice of the marriage 5-15 days before the ceremony.

Notice you had to obtain your parents permission. Back then you saw godly government displayed in that the State recognized the parents authority by demanding that the parents permission be obtained. Today, the all-encompassing ungodly State demands that their permission be obtained to marry.

By issuing marriage licenses, the State is saying, "You don't need your parents permission, you need our permission." If parents are opposed to their child's marrying a certain person and refuse to give their permission, the child can do an end run around the parents authority by obtaining the State's permission, and marry anyway. This is an invasion and removal of God-given parental authority by the State.

5. When you marry with a marriage license, you are like a polygamist. From the State's point of view, when you marry with a marriage license, you are not just marrying your spouse, but you are also marrying the State.

The most blatant declaration of this fact that I have ever found is a brochure entitled "With This Ring I Thee Wed." It is found in county courthouses across Ohio where people go to obtain their marriage licenses. It is published by the Ohio State Bar Association. The opening paragraph under the subtitle "Marriage Vows" states, "Actually, when you repeat your marriage vows you enter into a legal contract. There are three parties to that contract. 1.You; 2. Your husband or wife, as the case may be; and 3. the State of Ohio."

See, the State and the lawyers know that when you marry with a marriage license, you are not just marrying your spouse, you are marrying the State! You are like a polygamist! You are not just making a vow to your spouse, but you are making a vow to the State and your spouse. You are also giving undue jurisdiction to the State.

When Does the State Have Jurisdiction Over a Marriage?

God intended the State to have jurisdiction over a marriage for two reasons - 1). in the case of divorce, and 2). when crimes are committed i.e., adultery, bigamy. etc. Unfortunately, the State now allows divorce for any reason, and it does not prosecute for adultery.

In either case, divorce or crime, a marriage license is not necessary for the courts to determine whether a marriage existed or not. What is needed are witnesses. This is why you have a best man and a maid of honor. They should sign the marriage certificate in your family Bible, and the wedding day guest book should be kept.

Marriage was instituted by God, therefore it is a God-given right. According to Scripture, it is to be governed by the family, and the State only has jurisdiction in the cases of divorce or crime.

History of Marriage Licenses in America

George Washington was married without a marriage license. So, how did we come to this place in America where marriage licenses are issued?

Historically, all the states in America had laws outlawing the marriage of blacks and whites. In the mid-1800's, certain states began allowing interracial marriages or miscegenation as long as those marrying received a license from the state. In other words they had to receive permission to do an act which without such permission would have been illegal.

Blacks Law Dictionary points to this historical fact when it defines "marriage license" as, "A license or permission granted by public authority to persons who intend to intermarry." "Intermarry" is defined in Black's Law Dictionary as, "Miscegenation; mixed or interracial marriages."

Give the State an inch and they will take a 100 miles (or as one elderly woman once said to me "10,000 miles.") Not long after these licenses were issued, some states began requiring all people who marry to obtain a marriage license. In 1923, the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act). By 1929, every state in the Union had adopted marriage license laws.

What Should We Do?

Christian couples should not be marrying with State marriage licenses, nor should ministers be marrying people with State marriage licenses. Some have said to me, "If someone is married without a marriage license, then they aren't really married." Given the fact that states may soon legalize same-sex marriages, we need to ask ourselves, "If a man and a man marry with a State marriage license, and a man and woman marry without a State marriage license - who's really married? Is it the two men with a marriage license, or the man and woman without a marriage license? In reality, this contention that people are not really married unless they obtain a marriage license simply reveals how State-ist we are in our thinking. We need to think biblically.

You should not have to obtain a license from the State to marry someone anymore than you should have to obtain a license from the State to be a parent, which some in academic and legislative circles are currently pushing to be made law.

When I marry a couple, I always buy them a Family Bible which contains birth and death records, and a marriage certificate. We record the marriage in the Family Bible. What's recorded in a Family Bible will stand up as legal evidence in any court of law in America. Both George Washington and Abraham Lincoln were married without a marriage license. They simply recorded their marriages in their Family Bibles. So should we.

(Pastor Trewhella has been marrying couples without marriage licenses for ten years. Many other pastors also refuse to marry couples with State marriage licenses.)

This pamphlet is not comprehensive in scope. Rather, the purpose of this pamphlet is to make you think and give you a starting point to do further study of your own. If you would like an audio sermon regarding this matter, just send a gift of at least five dollars in cash to: Mercy Seat Christian Church 10240 W. National Ave. PMB #129 Milwaukee, Wisconsin 53227. www.mercyseat.net


Should "Marriage" Even Be Defined in Secular Law?

by Virgil Cooper

About 15 years ago, my former wife of 26-1/2 years, filed for divorce. We had seven children, five daughters and two sons. Our youngest at the time, our second son, was five years old.

At the time, I prepared a counterclaim to the Petition for Dissolution her attorney filed in Domestic Relations (DR) court. I met one afternoon with the head of the Maricopa County Superior Court, Marriage License Bureau, in downtown Phoenix. The marriage license bureau was headed by a young woman of about age 25. I asked her to explain to me the general and statutory implications of the marriage license. She was very cooperative, and called in an Assistant, a tall Black man who at the time was working on an Operations Manual for internal departmental use.

She deferred for most technical explanations to her Assistant. He walked through the technicalities of the marriage license as it operates in Arizona. He mentioned that marriage licensing is pretty much the same in the other states -- but there are differences. One significant difference he mentioned was that Arizona is one of eight western states that are Community Property states. The other states are Common Law states, including Utah, with the exception of Louisiana which is a Napoleonic Code state.

He then explained some of the technicalities of the marriage license. He said, first of all, the marriage license is Secular Contract between the parties and the State. The State is the principal party in that Secular Contract. The husband and wife are secondary or inferior parties. The Secular Contract is a three-way contract between the State, as Principal, and the husband and wife as the other two legs of the Contract. He said, in the traditional sense a marriage is a covenant between the husband and wife and God. But in the Secular Contract with the state, reference to God is a dotted line, and not officially considered included in the Secular Contract at all. He said, if the husband and wife wish to include God as a party in their marriage, that is a "dotted line" they will have to add in their own minds. The state's marriage license is "strictly secular," he said. He said further, that what he meant by the relationship to God being a "dotted line" meant that the State regards any mention of God as irrelevant, even meaningless. In his description of the marriage license contract, the related one other "dotted line." He said in the traditional religious context, marriage was a covenant between the husband and wife and God with husband and wife joined as one. This is not the case in the secular realm of the state's marriage license contract. The State is the Principal or dominant party. The husband and wife are merely contractually "joined" as business partners, not in any religious union. They may even be considered, he said, connected to each other by another "dotted line." The picture he was trying to "paint" was that of a triangle with the State at the top and a solid line extending from the apex, the State, down the left side to the husband, and a separate solid line extending down the right side to the wife, a "dotted line" merely showing that they consider themselves to have entered into a religious union of some sort that is irrelevant to the State. He further mentioned that this "religious overtone" is recognized by the State by requiring that the marriage must be solemnized either by a state official or by a minister of religion that has been "deputized" by the State to perform the marriage ceremony and make a return of the signed and executed marriage license to the State. Again, he emphasized that marriage is a strictly secular relationship so far as the State is concerned and because it is looked upon as a "privileged business enterprise" various tax advantages and other political privileges have become attached to the marriage license contract that have nothing at all to do with marriage as a religious covenant or bond between God and a man and a woman.

By way of reference, if you would like to read a legal treatise on marriage, one of the best is "Principles of Community Property," by William Defuniak. At the outset, he explains that Community Property law descends from Roman Civil Law through the Spanish Codes, 600 A.D., written by the Spanish jurisconsults.

In the civil law, the marriage is considered to be a for-profit venture or profit-making venture (even though it may never actually produce a profit in operation)and as the wife goes out to the local market to purchase food stuffs and other supplies for the marriage household, she is replenishing the stocks of the business. To restate: In the civil law, the marriage is considered to be a business venture, that is, a for-profit business venture. Moreover, as children come into the marriage household, the business venture is considered to have "borne fruit."

Now, back to the explanation by the Maricopa County Superior Court, Marriage Bureau's administrative Assistant. He went on to explain that every contract must have consideration. The State offers consideration in the form of the actual license itself -- the piece of paper, the Certificate of Marriage. The other part of consideration by the State is "the privilege to be regulated by statute." He added that this privilege to be regulated by statute includes all related statutes, and all court cases as they are ruled on by the courts, and all statutes and regulations into the future in the years following the commencement of the marriage. He said in a way the marriage license contract is a dynamic or flexible, ever-changing contract as time goes along -- even though the husband and wife didn't realize that. My thought on this is can it really be considered a true contract as one becomes aware of the failure by the State to make full disclosure of the terms and conditions. A contract must be entered into knowingly, intelligently, intentionally, and with fully informed consent. Otherwise, technically there is no contract. Another way to look as the marriage license contract with the State is as a contract of adhesion, a contract between two disparate, unequal parties. Again, a flawed "contract." Such a contract with the State is said to be a "specific performance" contract as to the privileges, duties and responsibilities that attach.

Consideration on the part of the husband and wife is the actual fee paid and the implied agreement to be subject to the state's statutes, rules, and regulations and all court cases ruled on related to marriage law, family law, children, and property. He emphasized that this contractual consideration by the bride and groom places them in a definite and defined- by-law position inferior and subject to the State. He commented that very few people realize this. He also said that it is very important to understand that children born to the marriage are considered by law as "the contract bearing fruit" -- meaning the children primarily belong to the State, even though the law never comes out and says so in so many words.

In this regard, children born to the contract regarded as "the contract bearing fruit," he said it is vitally important for parents to understand two doctrines that became established in the United States during the 1930s. The first is the Doctrine of Parens Patriae. The second is the Doctrine of In Loco Parentis. Parens Patriae means literally "the parent of the country"or to state it more bluntly -- the State is the undisclosed true parent.

Along this line, a 1930s Arizona Supreme Court case states that parents have no property right in their children, and have custody of their children during good behavior at the sufferance of the State. This means that parents may raise their children and maintain custody of their children as long as they don't offend the State, but if they in some manner displease the State, the State can step in at any time and exercise its superior status and take custody and control of its children -- the parents are only conditional caretakers.

He also added a few more technical details. The marriage license is an ongoing contractual relationship with the State. Technically, the marriage license is a business license allowing the husband and wife, in the name of the marriage, to enter into contracts with third parties and contract mortgages and debts. They can get car loans, home mortgages, and installment debts in the name of the marriage because it is not only a secular enterprise, but it is looked upon by the State as a privileged business enterprise as well as a for-profit business enterprise. The marriage contract acquires property throughout its existence and over time, it is hoped, increases in value. Also, the marriage contract "bears fruit" by adding children. If sometime later, the marriage fails, and a "divorce" results the contract continues in existence. The "divorce" is merely a contractual dissolution or amendment of the terms and conditions of the contract. Jurisdiction of the State over the marriage, over the husband and wife, now separated, continues and continues over all aspects of the marriage, over marital property and over children brought into the marriage. That is why family law and the Domestic Relations court calls "divorce" a dissolution of the marriage because the contract continues in operation but in amended or modified form. He also pointed out that the marriage license contract is one of the strongest, most binding contractual relationships the States has on people

At the end of our hour-long meeting, I somewhat humorously asked if other people had come in and asked the questions I was asking? The Assistant replied that in the several years he had worked there, he was not aware of anyone else asking these questions. He added that he was very glad to see someone interested in the legal implications of the marriage license and the contractual relationship it creates with the State. His boss, the young woman Marriage Bureau department head stated, "You have to understand that people who come in here to get a marriage license are in heat. The last thing they want to know is technical, legal and statutory implications of the marriage license." (Laughter)

I hope this is helpful information to anyone interested in getting more familiar with the contractual implications of the marriage license. The marriage license as we know it didn't come into existence until after the Civil War and didn't become standard practice in all the states until after 1900, becoming firmly established by 1920. In effect, the states or governments appropriated or usurped control of marriages in secular form and in the process declared Common Law applicable to marriages "abrogated."

Best regards from Virgil Cooper


Common Law Marriage

There is much confusion about common law marriage. Some believe it to be the manner in which God intended a Man and Woman to be married; others believe it to be nothing more than "shacking up" covered by dubious veneer of respectability. So what is the truth? In order to find the truth, we must look at the origins of common law marriage as well as the manner of its use over the past few centuries. It should be remembered that Men and Women have been getting married for at least 5,000 years, and that government laws concerning marriage are a relatively new event.

Most people today see "common law marriage" as a noun. In other words, it is a singular thing. That perception is inaccurate. It is only "marriage" that is the noun. "Common law" is merely a system of law that certain marriages utilize. Today's commonly accepted method of marriage is to acquire a government marriage license. Such marriages may rightly be called a "statutory marriage" because it is the system of "statutory law" that this type of marriage utilizes.

As we stated earlier, marriages have been taking place since the beginning of time, and historical records show that they were already in existence at the beginning of written history. As society progressed, and its legal systems matured, questions arose as to what really constituted a marriage. These questions originally revolved around issues such as inheritance and the status of children as bastards. Over time, the "common law of England" (from which America derived its common law) began to develop legal boundaries that expressed society's view of what constituted a marriage. The common law does not so much "control" the act of getting married, or "establish" a marriage, as it sets out the markers that can be used to determine whether a man and woman are in fact married, or whether they are simply using the word "married" without the existence of any of the fundamental elements being present that society understands to accompany a true marriage. In short, common law does not operate upon a marriage unless or until the validity of a marriage is challenged in court. At that time, the court will use the common law standards that have evolved to decide if the alleged marriage was truly established as such.

What's Legally Valid and What's Not?

When examining a legal question, it is customary to lay foundation and then come to the final conclusive point. However, we believe that in this instance it is best to state the conclusive legal reality of common law marriage first and then investigate the particulars.

Here is the holding from the decision of the Supreme Court of the United States in  Meister vs. Moore, 96 US 76 (1877):

"As before remarked, the statutes are held merely directory; because marriage is a thing of common right..." [emphasis added]

Directory - A provision in a statute, rule of procedure, or the like, which is a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed. Black's Law Dictionary, 6th Ed.

The statutes to which the Court was referring were statutes in Massachusetts and Michigan that purported to render invalid marriages not entered into under the term of written [statutory] state law.

While the various state courts have prattled on for almost 200 years about what the laws of their states do and do not allow concerning marriage, the US Supreme Court cut straight to the heart of the issue in declaring that statutes controlling marriage can only be directory because marriage is a common right, which is not subject to interference or regulation by government. Or phrased another way, the God-given right to marry existed prior to the creation of the states or the national government, and therefore it is beyond their purview to alter, modify, abolish, or interfere with, such a right.

In its decision in Meister, the Court refused to even examine the numerous state court decisions prior to making its own decision. While this was assailed by legal commentators of the day as an egregious choice, we can only agree with the Court in its choice because a state court opinion has no authority to affect a fundamental right that existed antecedent to the formation of the state.

It should be noted that Meister has never been reversed and is still controlling case law concerning the fundamental right to marry without state interference.

"Recognized" versus "Unlawful"

A lot of Americans hold the incorrect perception that common law marriage is unlawful. Nothing could be further from the truth. There is no state law anywhere that claims to make common law marriage "unlawful". Given the decision in Meister, such a law could not withstand the scrutiny of the US Supreme Court. And of course the exercise of a fundamental right is always lawful!
It is true that in many states common law marriage is not "recognized". Given the fact that common law marriage is lawful, one might reasonably ask what it meant by "not recognized". Without getting into a lot of legal mumbo-jumbo "not recognized" means that in the eyes of the State "the marriage is not known/understood/perceived to exist". We agree with that legal concept and we can see nothing in that matter to concern us.

A "statutory marriage" is registered with the State as a result of the man and woman applying for a State marriage license and thus entering into a three-party contract with the State. Obviously the State keeps records of all contracts to which it is a party and therefore such a marriage is "known to exist" to State authorities. It is equally obvious that a private common law marriage would not be "known to exist" to State authorities. The problem arises from the erroneous view that "not recognized" is synonymous with "invalid". Because of Meister, no state can arbitrarily declare common law marriage invalid by legislation, and none have done so! To state the point most clearly - "not recognized" does not mean, "invalid".

Validity of Marriage

Now that we have established that "recognition" and "validity" are two separate issues, one might then reasonably inquire as to what constitutes a "valid" marriage at common law?

It should be pointed out that under the common law, unless there is a controversy that arrives before a court of law, which calls into question the validity of a marriage, a marriage thought proper by the consenting parties is a valid marriage. It is bringing the marriage within the scope of judicial review that raises the specter of the marriage being invalidated.

The issues that a court may review in determining the validity of a marriage are:

    Consent of both parties.
         The existence of a marriage contract - oral or written.
         The existence of a marriage contract - present or future tense
         Prior marriages still in effect.
         Whether or not there is/was cohabitation.
         Solemnization or ceremony.
         Marriage Certificate providing evidence of a ceremony.
         A secret or deceptive marriage.
         A marriage based on false representations.
         Whether the scope and effect of an impediment produces an invalid marriage.
         Whether there are children that will be rendered bastards.
         Whether a religious figure performed the marriage ceremony.
This treatise would be prohibitively long (and likely pretty boring) if we explored each of these issues in depth. Instead we think it is in the best interest of the reader to discuss the elements that create a common law marriage that can never be invalidated by a court.
         Consent - It is critical to be able to provide evidence of consent. Although verbal consent is sufficient for validity, there are times (such as after one party has died) that a showing of verbal consent by both parties may be difficult to achieve. For this reason, it is highly recommended that consent by demonstrated through the existence of a written marriage contract, signed by both husband and wife. Cohabitation is also generally viewed as evidence of consent.
         Contract - A written marriage contract should establish the marriage in the present tense, as opposed to constituting a promise of marriage at some designated time in the future. Although courts have supported future tense marriage agreements, such an agreement is by means as secure as a present tense contract. The contract should specify the basic rights and duties of each party.
         Prior Marriages - Although courts have upheld the validity of some marriages in which one or both parties were still married (at common law) to other people, one should not count on such leniency. One should be able to prove (through evidence) that any prior marriages have been properly dissolved.
         Secret Marriages - Although the courts have generally accepted the view that a husband and wife may choose to keep a marriage secret without affecting its validity, again, one should steer clear of arrangements that leave room for today's court to render unfavorable decisions concerning validity.
         Solemnization or ceremony - Although the accepted doctrine is that a ceremony of solemnization is not a required element for validity, such a ceremony demonstrates consent as well as dispelling any speculation of secrecy or deception.
         Certificate of Marriage - While marriage certificates are most common these days in statutory marriages, one can create a marriage certificate easily enough on a personal computer, or one can have a graphic artist create one for you. The certificate should be signed by three witnesses. A properly executed marriage certificate lends to the evidentiary weight of consent.
         Photographic Evidence - In addition to a certificate of marriage, today one can memorialize the event in photographs or on video.
         Religious Ceremony - The requirement to have a religious figure perform the service is essentially dead. Such a requirement would bar atheists from marriage. Additionally, and more importantly, the common law is based on the Bible and there is no scriptural command, or even permission, for a religious leader to perform a wedding ceremony. This reality has been given recognition by the courts.

In summary, validity (or lack thereof) is often determined based a composite picture drawn from the totality of the circumstances. The person who wishes to establish an incontrovertible record of a valid common law marriage should make sure to steer clear of areas that leave room for ambiguity. One who wishes to make an incontrovertible record should:
1.       Have both parties sign a marriage contract and have the document notarized.
2.       Have a ceremony with witnesses present.
3.       Have three witnesses sign a marriage certificate.
4.       Memorialize the ceremony in photographs or on video.
5.       Co-habitate after the contract has been signed or the ceremony performed.
6.       Let friends, co-workers, and people in the community know you and your spouse are married.

By applying each of these elements, there is no court in America that can declare your common law marriage invalid. Why then has Common Law Marriage acquired a dubious reputation?

Many people shy away from common law marriage today because they feel it is nothing more than "shacking-up", covered by a very thin veneer of respectability, as well as affording no legal protection concerning property rights and child custody issues if the marriage fails. Since those are really two separate issues, lets look at the "shacking-up" perception first.

Pretending To Be Married

People who look at common law marriage as merely shacking-up are not necessarily wrong in their view. Whenever The People have a right secured to them that the government cannot control or interfere with, there will always be people who will misuse that right. That's just human nature. Common law marriage is not immune to that human foible and may very well, by its nature, be more prone to misuse than some other rights.

It is sad but true that many people simply use the principle of common law marriage as a convenient cover for cohabitating without any intention of establishing a true marriage. It is also true that historically the state courts have been filled with people alleging to be the spouse of a deceased person only for the purpose of getting at the decedent's property. These circumstances (as well as others) have led the courts to establish criteria for the validity of common law marriages.

We encourage people to use their right of common law marriage only in circumstances where a truly committed marriage is desired. In our opinion, marriage should be approached with reverence; its dignity promoted and preserved. Property and Custody Right

There is a perception that there are no protections for property rights and/or child custody concerns in a common law marriage. That is one of the many inaccurate perceptions of common law marriage.

All marriages, statutory and common law, are based on a contract. In the case of a statutory marriage, the contract is between three parties - the husband, the wife, and the State - the State being the superior party of interest. In such marriages, if the husband and wife wish to dissolve the marriage they must do so through a court that is enforcing that State's Family Law Code. We say "must" because once the State was involved in the contract as the superior party of interest, the husband and wife are legally bound to obey the State in matters that are controlled by the State's Family Code.

In the case of common law marriage, there are two ways that property rights and child custody issues can be addressed. The first and most desirable method is to structure the contract to include the mechanism by which a termination of the contract shall occur. The parties to the contract (husband and wife to be) can sit down and agree on how they would want to dissolve the marriage if that circumstance were to occur. In a section of the contract concerning the dissolving of the contract, the parties can specify how property is to be divided and how child custody issues will be addressed. Often times constructing a framework for such matters when you're happy and in love will help provide a smoother road if the unfortunate occurs. We suggest structuring methods that involve submitting your possible disputes to your church elders or to a small panel of trusted friends. In this way the decisions that you're seeking will be rendered by people who know you and love you, rather than by some government bureaucrat in a black robe.

If pre-structuring a mechanism for divorce within the contract doesn't appeal to you, you always have the option of submitting your marriage to the jurisdiction of your State's family law court. And have no doubt, if you submit your marriage contract to the Family Law Court, it will assume jurisdiction. You should understand that if you take this route, you are surrendering your independence to the State. You cannot back out if you don't like what the court decides. You will be bound by the decisions of the court just as if you'd entered into a statutory marriage.

Proving Your Marriage

You will only be called upon to "prove" your marriage if you are seeking some right or benefit (either private or public) that is available only to a person who is married. Examples of such matters are; death benefits to spouse on a life insurance policy; company provided medical benefits to spouse, etc.
If the right or benefit is coming from a private firm, usually a properly executed Marriage Certificate will do the trick. If that is deemed insufficient, one may need to provide a sworn affidavit. Generally, a sworn affidavit is considered conclusive on a matter unless the opposing party can rebut the affidavit.
If the right or benefit is coming from a government agency, one should start by submitting the properly executed Marriage Certificate. If the agency says that the certificate is unsatisfactory, one should immediately ask for an administrative hearing. At the hearing, one should do the following:

1.    Submit into evidence items 1, 3, & 4 (above), plus any other items of evidentiary value that proves the marriage.

2.       Ask to be sworn in and then give direct testimony that you and your spouse are married; give the details of your marriage (i.e. contract, dates, ceremony, etc.). In your testimony, include the Court's holding from Meister, that all State marriage statutes are merely directory in nature and that there can be no adverse consequence or invalidity for not following a statute that is only directory.

3.        Ask the agency representative (who should not the be the hearing officer) to be sworn in and then ask him/her to enter into the official record any evidence the agency possesses that your common law marriage is not lawfully valid.

4.       Ask the agency representative to enter into the official record any evidence that the agency is precluded from recognizing any lawfully valid marriage.

If you are prepared, and you're astute during the hearing, odds are good the agency will recognize your marriage as valid and binding upon them. If they don't, then their own official record can now be used against them in a court action to force them to recognize the marriage. Remember, when a court reviews an agency's decision, it is nothing more than an "administrative appeal" handled by a guy in a black robe. The only evidence that the court can consider about your marriage is that which was entered into the official record during the administrative hearing and any agency regulations on the subject.

More on Common Law Marriage

It is interesting to note the current definition of "marriage license" in Black's Law Dictionary, 6th Ed [1991] (which is the one used in a Family Law court):

Marriage license - A license or permission granted by public authority to persons who intend to intermarry... By statute in most jurisdictions, it is made an essential prerequisite to lawful solemnization of the marriage."

So far, so good; a license is required for persons who desire to "intermarry". Fine; but what exactly does "intermarry" mean?
Black's Law Dictionary (6th Ed):

Intermarry - See Miscegenation.

Black's Law Dictionary (6th Ed):

Miscegenation - Mixture of races. Term formerly applied to marriage between persons of a different race. [Now called "intermarry".] Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to equal protection clause of the Constitution.

[Editor's Note: Please note that the courts have held it to be unconstitutional to altogether "prohibit" such marriages, but the courts do not say that it is unconstitutional to require such marriages to be licensed .]

Keeping the foregoing facts in mind, let's look at a typical State marriage statute. Since we are most familiar with California statutes, we'll examine the section from the California Family Code:

Section 300 - Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division... [Underlines added for emphasis]

As you likely know, statutory law that lays a duty upon a person must be specific in the particulars that give rise to the duty. You will note that the section 300 does not require anyone to apply for a license; it merely says that consent "must" be followed by the issuance of a license. How then shall we interpret "must" in this context?

Must - This word, like the word "shall", is primarily of mandatory effect... But this meaning of the word is not the only one, and it is often used in a merely directory sense, and consequently is a synonym for the word "may"... Black's Law Dictionary, 6th Ed.

Given the US Supreme Court's holding in Meister [that all State marriage laws are merely directory in nature] which of the two definitions of "must" are applicable? Clearly the definition that gives the statute a directory character must be applied if the statute is to comports itself with the Meister decision, and thus remain within the bounds of Constitutionality.

If the legislative draftsmen who wrote these laws were not attempting to deceive you, section 300 would not depend on the subterfuge of veiled definitions, and it would read as follows:

Section 300 (our revised version) - Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent may be followed by the issuance of a license if a license is applied for. If a license is issued, the marriage must then be followed by solemnization as authorized by this division...

Reference Material

If you would like to learn more about common law marriage, an excellent legal analysis of the subject can be found in the book, "Common Law Marriage and its Development in the United States", written by Otto E. Koegel, D.C.L. This book was published by John Byrne & Company in 1922 and can generally only be found in a well-stocked law library.

(From Dave Champion's web-site: http://www.originalintent.org/)