Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your request for a legal opinion relates to certain problem areas in the administration of application for marriage license.
Question No. 1:
"Is our requirement in having applicants present attested copies of divorce decrees to record information of case number, judge and date of decree, necessary?"
KRS Chapter 402 actually does not require the filing of an attested copy of a divorce decree. It is true that under KRS 402.100 [marriage license form and data sheet] the applicants must fill in certain spaces relating specifically to their marital status. If either applicant is divorced, they must so state. But there is no express requirement for an attested copy of a divorce decree even though one of the applicants states that he or she is divorced. What this legislative policy amounts to is simply that the clerk is required to take the information and data given by the applicants at its face value, unless he had some extrinsic reason for not doing so. The statutes do not require anything specifically concerning the number of the divorce case or the name of the judge or the date of the decree. Fundamentally it can be seen that the burden of the truth of such matter is upon the applicants and not upon the clerk. It is important that the applicants state that they are divorced if that is true, since KRS 402.020(2) provides that, where there is a husband or wife living, from whom the person marrying has not been divorced, the proposed marriage is prohibited and void.
Question No. 2:
"If presentation of these documents is necessary, is the present procedure of not requiring documents for decrees that were granted out-of-state or decrees over five years past, proper?"
It is not necessary to answer Question No. 2, because of our answer in Question No. 1.
Question No. 3:
"Are we following proper procedure in accepting entry in the judgment book of the circuit clerk's office as final decree even though documents cannot be obtained by applicants because of non-payment of court costs?"
Here again KRS Chapter 402 does not require the specific data about divorce judgments in any particular. It is clearly the responsibility of the applicants in telling the truth as to whether or not a final decree of divorce has been effectively entered in the circuit clerk's office. If they lie about that, that is a responsibility and burden that they will have to bear farther down the road. If they get into a bigamy prosecution, this is no concern of the county clerk. Where the applicants come in and state to the clerk or his deputy that one or both of the applicants have been divorced, such statement must be construed on its face to simply mean that a final decree of divorce has been effectively entered.
This is a matter of merely following the policy of application for marriage according to its literal language. The courts have written that they are bound by the plain meaning of language used in a statute. H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937).
If the clerk has any valid reason, after a discussion with the applicants, to believe that one or both of the applicants is married to another without a final decree of divorce being effectively entered, then the clerk should not issue the license in view of KRS 402.020(2). In addition, any clerk who knowingly issues a marriage license to any persons prohibited by KRS Chapter 402 from marrying shall be fined not less than $500 nor more than $1,000, and removed from office by the judgment of the court in which he is convicted. KRS 402.990, as amended by S.B. 172 (Ch. 92, 1978 Acts, § 13(8)).