Pastors Can Be Subject to Criminal Penalties for Not Complying with Legal Requirements for Valid Marriage under State Law

The legal effect of a marriage without a valid license is not the invalidation of the marriage, but rather, criminal sanctions against a minister who knowingly performs a marriage without a license.

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 North Carolina court ruled that the failure of a couple to obtain a valid marriage license prior to their wedding will not invalidate the wedding, but may expose the officiating minister to criminal prosecution pursuant to state law.

A couple was married in 1993, and divorced in 2007. The couple later reconciled, and the wife moved back into the husband’s home in 2012. They attended church every Sunday and established a relationship with their pastor. The pastor at first assumed that the couple was married, but they informed her they had divorced and reconciled, and that they intended to remarry, but “never made a solid date.” According to the pastor, the couple “just said they wanted to do it, and I said, you know, give me a call and we’ll get together and discuss it. And, you know, he got ill and we never had that meeting that they wanted to have.”

The husband had chronic medical issues, and his wife cared for him. The husband became ill in November 2013, and required hospitalization. He was twice transferred from the hospital to a rehabilitation facility before returning to the hospital in December 2013. The couple discussed marriage while the husband was hospitalized, and decided to marry while he was still in the hospital. The wife asked a friend to be her maid of honor and witness, and she asked her son to be best man and a second witness.

The couple’s pastor visited the husband in the hospital every other day, and she agreed to officiate the wedding ceremony at the couple’s request. The pastor testified she had been ordained for 22 years, had performed many wedding ceremonies in her capacity as a pastor, and was fully authorized by her church to do so. She testified she performed the regular ceremony that she performs for weddings, though certain parts were shortened. She stated that both the husband and wife affirmed: “In the name of God, I take you to be my wife (or husband), to have and to hold from this day forward, for better, for worse, richer or poorer, in sickness, in health, to love and to cherish until death.” The pastor then pronounced them husband and wife, and performed “the blessing of the marriage” which, she claimed was very important in her church.

However, because the couple had not procured a marriage license, the pastor testified:

It was my intent to provide what I thought was for the husband in the last days of his life some closure to something that he felt and regretted had not been done. So, it was a pastoral act on my part. I knew there wasn’t a wedding license. I wasn’t in there as a representative of the state, which clergy are, you know, when they’re doing marriages and have the license present. So, I mean, we all knew that there was not a marriage license. So, this was a pastoral and a sacramental—I would say for me it was mainly a sacramental act, a sacrament that they wanted to know that they had … . I told them that it would not be a legal marriage if we didn’t have a license, and they did not have a license. But I believe the sacrament took place, and that was what was important to them.

The wife claimed that she did not attempt to obtain a marriage license because her husband was too ill to travel to the register of deeds, and that “we didn’t really think about a marriage license, we just were happy to finally get married.”

The husband died on the day following the ceremony. A dispute arose over the disposition of his estate. His wife claimed that, as his spouse, she was entitled to half his estate under state probate law. But the husband’s children argued that she was not his wife since the marriage ceremony was invalid due to the couple’s failure to obtain a marriage license. A trial court concluded that the ceremony did “not make the wife an heir or entitle her to the share of the surviving spouse or any other interest in or from the decedent’s estate.” The wife appealed.

A state appeals court noted that North Carolina law specifies that “a valid and sufficient marriage is created by the consent of [the parties] who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other … in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and with the consequent declaration by the minister or magistrate that the persons are husband and wife.”

The court noted that it was undisputed that the couple “were able to lawfully marry at the time of the ceremony; that they seriously and freely expressed their desire to become husband and wife in the presence of each other; that the pastor was an ordained minister with authority to conduct marriage ceremonies; and that the pastor declared during the ceremony that the couple were husband and wife.”

However, the court pointed out that the marriage was conducted without a license, and it quoted from the state marriage law: “No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant.” A violation of this provision is punishable by a fine:

Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.

The court concluded that “the fact that the ceremony in the present case was conducted without a license could not serve to invalidate an otherwise properly performed ceremony and resulting marriage. There is no dispute that the ceremony was conducted in the presence of a minister authorized to perform marriages, and that that minister … declared that couple were husband and wife. There is no dispute that the couple could lawfully marry at the time the ceremony was conducted, and that they stated at the ceremony that they would take each other as “husband and wife freely, seriously and plainly expressed by each in the presence of the other … .”

The legal effect of a marriage without a valid license is not the invalidation of the marriage, but rather, criminal sanctions against a minister who knowingly performs a marriage without a license.

What This Means For Churches:

Pastors occasionally are called upon by parishioners to perform a “religious” marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. Consider the following examples:

  • One or both spouses is an undocumented alien.
  • Compliance with one or more of the civil law requirements is not possible. For example, a couple failed to obtain a license within the time prescribed by law, or one of the spouses is underage.
  • A pastor is asked to perform a marriage in another state in which nonresident pastors are not authorized to perform marriages.
  • A divorced spouse will lose alimony from her former husband if she remarries. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called “palimony”) from one former partner to the other. Conditions apply.
  • A divorced spouse will lose insurance or other benefits in the event of remarriage.
  • A couple believes that their Social Security retirement benefits will be higher if they are not legally married.
  • A couple regards the civil law requirements for marriage as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony.

Whatever the reason, pastors should understand that officiating at a religious marriage that fails to comply with the civil law requirements for a marriage may not be treated as a valid marriage under state or federal law, and this can have several unintended consequences, including the following:

  • Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.
  • A religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on “loss of consortium” for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple cannot claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • If an employer provides health benefits to employees and their “domestic partners,” the amount paid by the employer is generally a tax-free fringe benefit to employees but is taxable to unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a “common law marriage” recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner’s estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner’s estate. In re Estate of Peacock, 788 S.E.2d 191 (N.C. App. 2016).

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