Court Rules Marriages Performed in Foreign Country Valid in Maryland

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition, to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A Maryland court addressed the validity of marriages performed in foreign countries in a ruling that will be relevant to many pastors. A man and woman, both natives of the Democratic Republic of Congo (formerly Zaire), met in 1993 and decided to marry. The marriage occurred in December of 1993. The husband was not able to physically attend his wedding due to his work schedule, but designated his cousin to represent him. In addition, the husband "participated" in the wedding over the phone. During the ceremony the husband was asked three questions: did he know the bride, did he like her, and did he want a dowry to be exchanged. He answered "yes" to each question. The marriage was consummated by the transfer of $200 cash, clothes, and a live goat.

After the wedding, the couple lived together and represented themselves as husband and wife. They moved to Virginia, where they purchased a home. In 1994, the couple participated in a "renewal of vows" ceremony at a church in Virginia. The couple obtained a "Proof of Marriage" certificate from the Congolese Embassy and brought it to the Virginia ceremony. The church provided them with a second certificate stating that they were "united in matrimony … in conformity with the laws of the State of Virginia and the Republic of Zaire." The certificate also attested that "there were witnesses present at the ceremony, including one member of [the husband's] family."

The couple eventually moved to Maryland. The couple had three children, but their marriage deteriorated to the point that the wife sued for divorce and requested alimony and child support. The husband responded by asserting that the couple had never been legally married, and therefore there was no basis for alimony or child support. A trial court ruled that the marriage was valid, granted the divorce, and ordered the husband to pay alimony and child support. The husband appealed, claiming that a proxy marriage in the Congo was not entitled to recognition in Maryland.

A Maryland appellate court affirmed the trial court's ruling. It noted that under the principle of comity "Maryland courts will honor foreign marriages that were valid where performed, even if the marriage would not have been valid if performed in Maryland." The court cited two exceptions to this rule: "First, the marriage must not be expressly prohibited by the [state legislature]. Second, the marriage must not be repugnant to Maryland public policy." The court concluded that the marriage in the Congo was valid where performed and therefore would be recognized in Maryland, and that neither exception applied:

[Maryland law] describes who can perform a marriage ceremony and when the ceremony must be performed. Neither this law, nor any other statute, precludes Maryland from recognizing a ceremony where one party participates by proxy—or in the manner that occurred here—and the ceremony is valid in another jurisdiction. To preclude validity, the statute must unequivocally void such marriages. The General Assembly has not prohibited recognition of a foreign marriage such as the one that occurred here. We also find that neither proxy nor phone marriages are repugnant to Maryland public policy. Maryland's attitude is that marriage should not be set aside lightly.

The court noted that the Uniform Marriage and Divorce Act, which has been adopted by several states, declares "if a party to a marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his proxy. If the person solemnizing the marriage is satisfied that the absent party is unable to be present and has consented to the marriage, he may solemnize the marriage by proxy. If he is not satisfied, the parties may petition the … court for an order permitting the marriage to be solemnized by proxy." An official comment to this portion of the Act further explains that "there are many reasons why, in individual cases, couples may prefer such a ceremony. So long as the marriage license procedure has been followed and the official performing the ceremony has no reason to doubt the intentions of the absent prospective spouse, there is no reason why a proxy marriage should be prohibited."

The court further explained:

Distant marriages are becoming more and more common. Notably, two law professors at Michigan State University have been conducting a study, the E-Marriage Project, since 2008 … . The study looks at the marriage ceremonies of the 50 states. The two professors believe that states should go so far as to permit couples to marry using videoconferencing technologies such as Skype. They call this proposal "modernizing marriage," and they compare a Skype marriage with other major business contracts that take place over videoconference every day.

The mounting recognition and research on distant marriages suggest that sometimes it may be a couple's only option. The men and women who serve in our armed forces sacrifice a great deal of control over their daily lives for this country and they often are married by proxy. In addition, modern employment commitments often uproot one party from home for long periods of time. This may make personal participation in a marriage ceremony impracticable. Not permitting marriages by proxy or by phone could deprive these couples of the emotional and legal benefits that accompany marriage. [The marriage in this case] seems to illustrate such a situation. The husband was working in another country for his employer, yet the couple was still able to have a wedding ceremony in their native country with the husband participating by phone.

For these reasons, we are not persuaded that a marriage by proxy or by phone rises to the level of being repugnant to public policy. The types of marriages are not specifically prohibited by law, do not harm the liberties of either spouse, and it is not inconceivable in the future that such a marriage may be valid when performed in Maryland. The parties' marriage in the Congo, where someone stood in for [the husband who] participated by phone, was valid in the Democratic Republic of the Congo and Maryland courts would find it valid in this State under the doctrine of comity. Recognizing that the parties' marriage was valid, the circuit court did not err in granting a divorce, awarding alimony, dividing property, calculating child support, or awarding attorney's fees.

What This Means For Churches:

This case is of interest because it suggests that clergy may perform marriages by proxy or electronic communications technology in situations when one or both spouse's physical presence is not possible. Such marriages may occur in a number of possible scenarios, including:

emergencies
military deployment
incarceration
illness
employment
business necessity

This case demonstrates that pastors who are asked to perform a marriage by proxy, or electronic technology, should not assume that the ceremony will be invalid. In many states, the marriage will be lawful. Before responding to such a request, check with a local attorney to see if your state law recognizes these ceremonies. Tshiani v. Tshiani, 56 A.3d 311 (Md. App. 2012).