When There Is No License, Is There a Marriage?

In Part One of this artice, available at http://bit.ly/1OEHU0Q, we asked the question: What happens when your client says he was married before, but without a license, in a religious ceremony? Since he thought that the State did not recognize his marriage, and he got a religious divorce, he assumed he was free to marry once more. Is he right? We have previously discussed how New York and California would handle this question. Now, let's look at how some other states treat the issue.

New Jersey

The statutes of New Jersey provide that “No marriage ' shall be valid unless the contracting parties shall have obtained a marriage license as required by section 37:1-2 of this Title, and unless, also, the marriage after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized by section 37:1-13 of this Title to solemnize marriages; and failure in any case to comply with both prerequisites aforesaid, which shall always be construed as mandatory ' shall render the purported marriage absolutely void.” N.J. Stat. ' 37:1-10. Furthermore, “Before a marriage can be lawfully performed in this State, the persons intending to be married ' shall obtain a marriage ' license from the licensing officer and deliver it to the person who is to officiate.” NJ Stat. ' 37:1-2. Statutorily, alimony and attorneys' fees may apply to a void marriage. The Statute states that pending any matrimonial action, the court “may make such order as to the alimony or maintenance of the parties.” 2006 Bill Text NJ A.B. 3787.2006 Bill Text NJ A.B. 3787. The Statute continues, “The Court may order one party to pay a retainer on behalf of the other for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just.” Id.

The case of Blikshteyn v. Shakarov, 2007 N.J. Super. Unpub. LEXIS 584, examines the validity of a religious marriage, alone, in New Jersey. In that case, the husband filed a motion based on his sworn statement that the parties took part in a religious marriage ceremony, performed by a rabbi in New York State, but did not obtain a marriage license. The court ruled that “In New Jersey, a legal marriage requires a marriage license.” Id. at 8. Thus, it can be easily inferred that if a religious marriage ceremony takes place in New Jersey without a marriage license, the marriage would be void.

In Parkinson v. J. & S. Tool Co., 64 N.J. 159 ' a case determining whether a woman purportedly married to a deceased was entitled to death benefits ' a husband and wife had legally divorced and then, 11 years later, attempted to remarry. The priest misinformed them that they were still married in the eyes of God; the couple accepted that explanation, and did not obtain a new marriage license. Even though this marriage should have been void, the court ruled that “[t]he terms 'wife' and 'widow' as used in the statute include de facto widows where good faith coalesces ' a de facto relationship of man and wife continuing unbroken over an extended period of years having had its genesis in a ceremonial marriage.” Id. at 162, citing 59 N.J. 196. Furthermore, “It is ' enough of an injustice that such a deceit may embitter a widow and tarnish whatever memories ' she has without the exacerbation of denying her dependency benefits.” Id. at 167. The court referred to the statute regarding dependency: “The term 'dependents' shall apply to and include any or all of the following ' namely, husband, wife.” N.J. Stat.” 34:15-13. This is evidence of the fact that the court considered “good faith” as a main factor to establish a void marriage as valid. In that case, the decedent's wife had the same rights as if she was legally married, and therefore was entitled to benefits.

In Callaghan v. Leonard, 152 N.J. Super. 95 (Ch. Div. 1977), a New Jersey court dealt with the question of spousal support in a void marriage. There, the plaintiff wife sought an annulment after learning that her husband's previous marriage had not been dissolved, and filed a motion for award of alimony. The court ruled that the language of the statute, N.J.S.A. 2A:34-23, using the word, “any,” clearly provided “that in all actions brought for annulment, an award of alimony (maintenance) is proper.” Id. at 97, 98, citing Richards v. Richards, 139 N.J .Super. 207,211-212 (civ. Div. 1976). But, more importantly, the court specificaly stated that the legislature's purpose in enacting the amendment to N.J.S.A. 2A:34-23 was to remedy the “historical accident” that denied alimony in annulment proceedings or actions to declare a void marriage.

(We will not go into discussion of these issues here, but in New Jersey, maintenance, counsel fees and equitable distribution may be awarded in a void marriage.)

Oregon

In Oregon, a religious marriage completed without of a marriage license is void. The statute states, “All persons wishing to enter into a marriage contract shall obtain a marriage license ' directed to any person or religious organization or congregation authorized by ORS 106.120 to solemnize marriages.” ORS ' 106.041(1).

Regarding the issue of spousal support or attorneys' fees applying to a void marriage, the statute states, “Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment ' for spousal support.” ORS
' 107.105(d). Regarding attorneys' fees, the statute also says that “[t]he court may provide in the judgment ' for a reasonable attorney fees and costs.” ORS ' 107.105(j). Void marriage is included in the “marital annulment” term in the statute, as acknowledged in the case of Denis v. Denis, 153 Ore. App. 655 (1998). There, the marriage was void because the husband's divorce of his previous wife was not recognized. The court stated, “A marriage may be declared void in an annulment proceeding.” Id . at 659. The court further ruled that, although the marriage was void, the wife would still have received an award of support because “[e]quity may require support for a party who has sought the benefit of marriage even though the marriage is later declared void.” Id. at 660. It can be argued that the court also allowed the allocation of attorneys' fees, which “[u]nder ORS 107.105(d), may be included under any support order.

Texas

Texas law states, “A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk.” Tex. Fam. Code ' 2.001. Accordingly, for any marriage to be valid, the parties must obtain a marriage license. Furthermore, the statute states that “An order for maintenance is not authorized between unmarried cohabitants under any circumstances.” 2001 Bill Text TX H.B. 691. Therefore a couple who marries only through a religious ceremony is considered unmarried according to the Tex. Fam. Code, and as such, cannot be awarded maintenance.

Since Texas is a more conservative state, it wants to incentivize marriage and its stability. That is why, when a married spouse lives with someone else, even if they are married religiously, the State penalizes that spouse by removing alimony (maintenance) to discourage extramarital affairs. When an unmarried couple lives together, whether or not they are religiously married, they are not afforded any rights of marriage.

On the issue of maintenance, it appears that a first-time couple with no previous hindrance who married with only a religious marriage would not be deemed to be married, and the parties would not be entitled to receive any benefits. The statute states, “The issue of a marriage declared void or voided by annulment shall be treated in the same manner as the issue of a valid marriage.” Tex. Estates Code ' 201.055. Although this may initially seem like stating that all proceedings relating to a regular divorce or annulment of a valid marriage should apply here, such as alimony, it does not. It merely means that the filing of the papers and the proceeding of annulment of a void marriage, in the narrow sense, is similar to that of a valid marriage's dissolution.

Thus, in Texas, the award of spousal support is not granted in marriages entered into without marriage licenses.

Martin E. Friedlander is the principal of Martin Friedlander, PC. He can be reached at 212 321-7092; [email protected]. Morgan Mazur , an associate at the firm, and Shimon E. Friedlander, a pre-law student at New York's Touro College, assisted in the research for this article.