Recent Developments in Arizona Regarding Marriage and Divorce

An Arizona court upheld the validity of a marriage despite a number of technical violations of state law.

Church Law and Tax1998-11-01

Marriage and divorce

Key point. Marriages generally are recognized as legally valid in a couple’s state of residence even though performed in another state or country, so long as the marriage was valid where performed.

Key point. A marriage is not necessarily void because a technical requirement is not met.

An Arizona court upheld the validity of a marriage despite a number of technical violations of state law. A couple was issued a marriage license by a county clerk. While on vacation in Puerto Rico, the couple exchanged vows in a marriage ceremony performed by the pastor of a local church. The couple, the pastor, and two witnesses signed the marriage license after the ceremony. The couple then returned to Arizona, continued to reside there as husband and wife, and had one child. A few years later, the wife asked a court to annul the marriage on the following grounds: (1) the marriage was invalid in both Arizona and Puerto Rico because neither the Arizona marriage license nor any other was ever filed or recorded in either jurisdiction; (2) the marriage was solemnized by a Puerto Rican pastor rather than a duly licensed or ordained Arizona pastor; and (3) the couple went to a foreign country for solemnization of their marriage to evade Arizona marriage laws. The trial court agreed with the wife and granted an annulment. The husband appealed, and a state appeals court rejected each of the wife’s grounds for invalidating the marriage.

Failure to return the marriage license to the county clerk

The husband insisted that the marriage license remained in his wife’s sole possession from the date of the ceremony, and that she told him it had been properly filed. As a result, the marriage should not be invalidated because of the failure to file the license. The court concluded that it was not necessary to address the husband’s argument, since the failure to return the marriage license to the county clerk did not invalidate the marriage. The court quoted from the state law defining the requirements of a valid marriage:

A valid marriage is contracted by a male person and a female person with a proper marriage license in the presence of an official and two witnesses who participate in a ceremony conducted: (1) By a person authorized to solemnize marriages who signs and files the marriage license with the clerk of the superior court. (2) In the presence of at least two witnesses of lawful age who sign the marriage license.

The court concluded that “all of these statutory requirements were satisfied here except for the admitted failure of the pastor to file the marriage license with the clerk of the superior court, a class two misdemeanor …. That failure alone, however, does not invalidate the marriage.” The court continued:

It is frequently provided by statute that a person solemnizing a marriage shall make a return thereof to a specified officer of the county in which the marriage takes place; and a failure to observe such a statute is made an offense punishable criminally. Other statutes impose a penalty on the officer to whom the return is made for a failure to record it. Such return and record are primarily for the benefit of the parties … and a failure or deficiency in the return or record does not affect the validity of the marriage.

Effect of a nonresident pastor performing a marriage ceremony

The trial court ruled that the marriage of two Arizona residents in Puerto Rico by a Puerto Rican pastor was not legally valid in Arizona. It noted that Arizona law specifies that “[a] marriage contracted within this state is not valid unless … [it] is solemnized by a person authorized by law to solemnize marriages.” Among those authorized to solemnize marriages are “[d]uly licensed or ordained clergymen.” The trial court concluded that because a Puerto Rican pastor, rather than a duly licensed or ordained Arizona clergyman, solemnized this marriage, it is invalid. Once again, the appeals court disagreed, noting simply that the statute “is expressly limited to marriages solemnized within this state and does not apply to this marriage.”

Foreign marriages designed to evade state law

As is the case in many states, Arizona law specifies that “[m]arriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state.” However, the same statute specifies that such marriages are invalid when “parties residing in this state … evade the [marriage] laws of this state … by going to another state or country for solemnization of the marriage.” The trial court concluded that the marriage was invalid because the couple were married in Puerto Rico in order to evade Arizona law. The appeals court rejected this conclusion, noting that “not only is the record devoid of anything suggesting that the parties went to Puerto Rico to evade Arizona marriage laws, it also contains unequivocal evidence to the contrary.” The court pointed out that the wife’s own testimony revealed that the couple had traveled to Puerto Rico for a vacation.

Application. This case addresses a couple of points of interest to all clergy:

The court concluded that the failure to comply with a technical requirement of a state marriage law will not necessarily invalidate the marriage. In this case, neither the pastor who performed the foreign marriage nor the couple themselves filed a marriage license with the county clerk back in Arizona. The court rejected the wife’s claim that this failure invalidated the marriage. Quite to the contrary, the only legal effect of noncompliance with this requirement was the pastor’s own potential criminal liability.

Clergy often are asked to perform marriages for couples who are residents of another state. For example, a member of a church moves to another state and becomes engaged, and wants to be married in her “home church”. Is such a marriage legally valid in the other state? Yes, concluded the court in this case. It relied on a state law specifying that “marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state.” Many states have a similar law. You can call the office of your county clerk to find out if your state has such a law. Barbosa—Johnson v. Johnson, 851 P.2d 866 (Ariz. App. 1993). Performance of Marriage Ceremonies

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