Marriage and Divorce – Part 1

An Ohio court ruled that a marriage was valid even though the minister who solemnized it was not licensed to solemnize marriages as required by state law.

Church Law and Tax2005-03-01

Marriage and divorce – Part 1

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.
Performance of Marriage Ceremonies

* An Ohio court ruled that a marriage was valid even though the minister who solemnized it was not licensed to solemnize marriages as required by state law. “Ordained or licensed ministers” are authorized to solemnize marriages in Ohio if they have received a “license to solemnize marriages from the secretary of state. A couple was married by a minister who had been licensed by a church, but who had not received a license to solemnize marriages from the secretary of state. Several years later the husband died, and the wife claimed all of his estate. The executor of the estate claimed that the “wife” was not entitled to any portion of the estate since the “marriage” had been performed by a minister who did not have a license to solemnize marriages issued by the secretary of state.

A state appeals court acknowledged that ministers must receive a license from the secretary of state in order to legally solemnize marriages in Ohio. However, it concluded that marriages performed by ministers without a license from the secretary of state were “voidable” rather than “void.” The court explained this important distinction as follows:

There are major conceptual differences between void and voidable marriages. A voidable marriage is valid when entered and remains valid until either party secures a lawful court order dissolving the marital relationship. By contrast, a void marriage is invalid from its inception, and the parties thereto may simply separate without benefit of a court order of divorce or annulment. The policy of the law is to sustain marriages, where they are not incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited. Stated differently, Ohio courts label a defective marriage voidable unless such a label is against policy considerations.

The court noted that only three kinds of marriages had been declared “void” by the courts of Ohio: (1) marriages between an uncle and niece; (2) marriages between persons of the same sex; and (3) marriages between an unmarried person and a married person. Since the marriage in this case did not fit within one of these categories, it was voidable rather than void. And, since the parties had not challenged the validity of the marriage as of the date of the husband’s death, the marriage was legally valid and the wife was the rightful heir to her husband’s estate.

In support of its decision, the court noted that other states have addressed the validity of marriages performed by a minister not legally authorized to solemnize marriages. Courts in Maryland, Texas, Nebraska and Wisconsin “have found the marriage voidable when an unauthorized person solemnizes it,” while courts in North Carolina, New York and Maine have found this type of marriage void.”

Application. This case illustrates the importance of ministers being familiar with the legal requirements for solemnizing marriages in their state. While in some cases a minister who solemnizes a marriage without being authorized to do so by state law is “voidable” rather than “void,” this is not true in every state. A good place to start in familiarizing yourself with your state’s requirements is the local office that issues marriage licenses. In many states, this is the county recorder’s office. Often, these offices have compiled a checklist of legal requirements for solemnizing marriages that will be of great value to ministers. Dodrill v. Dodrill, 2004 WL 938476 (Ohio App. 2004).

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