Request By:
Ms. Carla R. Boyd
Floyd County Clerk
Courthouse
P.O. Box 1089
Prestonsburg, Kentucky 41653
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Clerk of Floyd County, you request the opinion of this office as to the following statement:
"It is my understanding that if the person who performs a marriage does not return the certificate to be recorded in my office within ninety (90) days, the marriage is null and void. "
Your question: Is the above statement a correct interpretation of the law?
The pertinent statute in this situation is KRS 402.220, which reads:
"The person solemnizing the marriage or the clerk of the religious society before whom it was solemnized shall within three (3) months return the license to the county clerk of the county in which it was issued, with a certificate of the marriage over his signature, giving the date and place of celebration and names of at least two (2) of the persons present."
We assume in this situation that the parties to the marriage were validly issued a Kentucky marriage license by the appropriate county clerk (see KRS 402.080) and, within the thirty (30) days period under KRS 402.190, a person authorized by law (see KRS 402.050 and 402.060) did actually solemnize the marriage with at least two credible witnesses.
KRS 402.220 and 402.230 (filing of the marriage certificate) are obviously designed to establish a public record or proof of a marriage. Their significance can extend no further, in the absence of clear language to the contrary. Here we find no statement in the statute referring to the validity or invalidity of a marriage. These observations are warranted, especially in view of the court established principle that the law and public policy favor matrimony. When the celebration of a marriage is once shown, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed. Thus it will be presumed that the person assuming to officiate at the ceremony was authorized to perform it, and that a license was properly issued. In addition, it is settled in Kentucky that in the absence of any record evidence (the county clerk's record evidence is, of course, a high order of evidence), a marriage may be proven by parol evidence. See
Vest's Adm'r v. Vest, 234 Ky. 587, 28 S.W.2d 782 (1930); and
McDaniel v. McDaniel, 212 Ky. 833, 280 S.W. 145 (1926). In McDaniel, the court wrote this at page 146:
"It is true that under the law of this state there must be a marriage in fact, and that common-law marriages are not recognized as valid. However, record evidence is not essential to a valid marriage. It may be proved not only by the record, but by persons who witnessed the ceremony. Also a presumption of marriage may arise from reputation. Thus where the parties have lived together ostensibly as man and wife for a long period of time, and have recognized and treated each other as such, and have been received into society and treated by their friends and relations as having and being entitled to that status, the law, in the interest of morality and decency, will presume that they have been legally married. Indeed, the most usual way of proving marriage except in actions for criminal conversation, and in prosecutions for bigamy, is by general reputation, cohabitation, and acknowledgment.
Travers v. Reinhardt, 205 U.S. 423, 27 S. Ct. 563, 51 L. Ed. 865;
Bartee v. Edmunds, 96 S.W. 535, 29 Ky. Law Rep. 872;
Caldwell v. Williams (Ky.) 118 S.W. 932."
We have indicated the legal significance of KRS 402.220. In addition, where the person solemnizing the marriage fails to observe the three months rule of that statute, you, as clerk, have the statutory authority to file the certificate which is returned to you after the three months period has expired, except that you should note on the return documents the date of your acceptance of them for the record and the specific fact that they were returned after the dead-line date, your naming the dead-line date. There is nothing in the statutes giving you the authority to decline to file and record the license and certificate as mentioned in KRS 402.230. In addition, the parties to the marriage should not be penalized by a late return of the license and certificate. They are innocent parties; and the law favors a valid marriage and the record proof. Under KRS 402.990(13), the person failing to make the return of the license and certificate under KRS 402.220 is subject to a fine of fifty dollars ($50). KRS 402.990(12) subjects a clerk to a certain fine where the clerk violates KRS 402.230. However, where the clerk files and records the license and certificate under a late return, as indicated above, the clerk would not be in violation of KRS 402.230.
CONCLUSION
(1) Where the person who performs the marriage ceremony does not return to the clerk the license and certificate, as required by KRS 420.220, within the three (3) months period, the marriage is not null and void because of such failure to return the license and certificate.
(2) Where the person solemnizing the marriage does not return the license and certificate to the county clerk within the three (3) months period, the county clerk has the authority and duty to file the certificate and record the data required by KRS 402.230 where the license and certificate reach the clerk after the three (3) months period has elapsed. Here the clerk should make a note of the dead-line date and the date of acceptance.
(3) The clerk's record of a marriage under KRS 402.230 is not the exclusive record of the marriage. Marriage may be proved by the marriage witnesses or by social reputation.