Performing “Religious” Marriage Ceremonies

Risks of officiating at “religious” marriages that don’t comply with state law.

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 Kentucky court ruled that a couple who participated in a "religious marriage" without obtaining a marriage license from the county clerk were not legally married. After dating for nearly a year, a Jewish couple asked their rabbi if he could perform a Jewish marriage ceremony consistent with the laws, customs, and traditions of the Jewish faith, but without a "secular, legal marriage contract." In particular, the parties did not wish for any civil marriage license or marriage certificate to be executed or filed. Neither person was an American citizen, and the rabbi understood that their desire to avoid a civil marriage was based upon immigration concerns and a need to remain legally free to marry American citizens for the purpose of applying for citizenship.

The rabbi confirmed that Jewish religious law does not require that a civil marriage license be obtained and executed, or that certification of the marriage ceremony be filed with a governmental clerk, for the establishment of a valid marriage. Even so, his attempts to convince the couple to be married in accordance with both the mandates of Jewish religious law and civil law were unsuccessful.

The rabbi presided over a highly ritualistic orthodox Jewish wedding ceremony for the couple, in the presence of more than 100 family, friends, and guests, and in accordance with all laws, customs, and traditions of their faith. During the ceremony, the couple signed a "Ketubah"—a formal Jewish marriage contract that provides for a money settlement payable to the wife in the event of divorce or at the husband's death. Thereafter, the assembly joined in other traditional Jewish acts related to marriage at a reception.

Though he is a person authorized to solemnize civil marriages under state law, the rabbi testified he did not solemnize a civil marriage for the couple, at their insistence.

Both "spouses" acknowledged that they did not apply for, or obtain, a civil marriage license or cause a marriage license or marriage certificate to be executed and filed with the county clerk. The rabbi confirmed that the couple directed him not to sign or file documentation with the county clerk's office certifying that a marriage of any kind had taken place and, in keeping with their instructions, he did not do so. Thereafter, a son was born to the parties, and they continued to live together.

Two years later, the "husband" filed a divorce petition with a civil court. The "wife" opposed the petition, and a trial court ruled that the couple had entered into a legally valid "de facto marriage." The court found "no statutes relating to marriage that would indicate that the legislature intended that the validity of a marriage is conditioned on applying for, obtaining, signing, or filing a certificate of marriage license" and held "a failure to obtain or return for filing with the county clerk a license or certificate of marriage does not void or invalidate an otherwise valid marriage." Further, even though the couple had failed to obtain a marriage license and had excluded solemnization of a civil marriage from their religious marriage ceremony, the trial court held they had nevertheless established a valid and legally recognized de facto marriage.

On appeal, the "husband" claimed that the trial court erred in holding that a legally valid de facto marriage had been established because the term "de facto marriage" is synonymous with a common-law marriage and Kentucky does not recognize common-law marriage. A state appeals court began its opinion by observing:

The issues confronting us in the present case arise in the context of parties who knowingly and intentionally evaded and disregarded statutory mandates for establishing a legally valid civil marriage, particularly including their duty to initially obtain a license to be civilly married within Kentucky. Instead, they opted to participate in a purely religious marriage ceremony celebrated by their rabbi before a gathering of family and friends. Contrary to the explicit advice of their rabbi, the parties chose not to secure the requisite civil marriage license in advance of their marriage ceremony. For whatever reason, they demanded their rabbi solemnize a marriage ceremony solely in accordance with the laws of their Jewish faith, with no reference to, witnessing, or certification of, a civil marriage. They further insisted their rabbi sign and file no certification or recording of any marriage ceremony with any civil authority. The trial court found the parties thereafter cohabited, gave birth to a son, and held themselves out to their community as husband and wife, prior to the souring of their relationship. Based on these facts, the trial court determined the parties had established a valid "de facto marriage" under Kentucky law.

The court noted that the legal requirements for a valid marriage in Kentucky are "concise and unambiguous." Section 402.080 of the Kentucky Revised Statutes specifies that "no marriage shall be solemnized without a license therefore." The court interpreted this language as imposing two requirements for a valid marriage: "First, the parties intending to be married must obtain a marriage license from a county clerk. Second, having obtained a marriage license, the parties intending to be married must solemnize their intent to be married before a person or society believed in good faith to possess authority to solemnize the marriage." The court concluded that strict compliance with these requirements "is necessary for the establishment of a legally valid and binding civil marriage."

In the present case, it was undisputed that the couple did not apply for, or obtain, a marriage license from the county clerk prior to their religious ceremony. The court noted that both "spouses" were aware of the license requirement, but intentionally disregarded it. Because they both "flagrantly disregarded the statutory requisites, neither can now reasonably argue that a legally valid civil marriage was ever intended, effectuated or supposed. Though a purely religious marriage ceremony was solemnized by [the rabbi] the uncontroverted proof establishes that no marriage license was ever obtained, and on that basis alone any presumption of a legally valid civil marriage is entirely negated."

The court concluded that "where parties fail to obtain the requisite marriage license prior to the solemnization of their intent to be joined in marriage, there is nothing of a civil nature for an otherwise authorized officiant to solemnize, no legally valid civil marriage can arise, and there is no civil marriage to be otherwise prohibited, voided, or declared invalid."

The court acknowledged that the rabbi was authorized by state law to solemnize civil marriages in Kentucky, but it concluded that "no minister, priest, rabbi, justice, judge, or religious society is authorized to solemnize a civil marriage absent the parties thereto first obtaining a marriage 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 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 intentionally fails to comply with the civil law requirements for a marriage may not be treated as a valid marriage under state 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. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. 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.
  • If a couple is "considered married" for the whole year, they can file a joint return, or separate returns. A couple is "considered married" for the whole year if, on the last day of the tax year, they were living together in a common law marriage recognized in the state where they live, or in the state where the common law marriage began. Only nine states currently recognize common law marriages, and in many of these states, only some common law marriages are recognized.
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple can 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.
  • If an unmarried couple ends their relationship, there generally is no right of alimony or support from one former partner to the other. 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. Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. App. 2011).

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