Request By:
Ms. Barbara E. Van Hooser
Caldwell County Clerk
Courthouse
Princeton, Kentucky 42445
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have questions emerging from the enactment of H.B. 408 [Ch. 74, 1980 regular session], relating to applications for marriage licenses by persons who are 60 years of age or older.
Question No. 1:
"Waiver of the 3 day waiting period (what if one party is under 60?)"
KRS 402.080(2), as amended by Section 1 of H.B. 408, reads:
"No county clerk shall issue a marriage license except where both persons are sixty (60) years of age or older until the application for a marriage license remains on file, open to the public, in the office of the county clerk, for three days before license is issued. The three day waiting period shall be waived if both applicants are above the age of sixty (60) years."
If one of the parties is under 60, the waiving of the three day waiting period cannot be applied. Under the literal language of the act both persons [applicants] must be 60 years of age or older. In the construction of statutes the appellate courts have consistently held that words and phrases employed by the legislature must be given their plain and ordinary meaning, according to popular usage, unless they have acquired a technical sense and meaning. Baker v. White, 251 Ky. 691, 65 S.W.2d 1022 (1933) 1024. See also KRS 446.080(4).
Question No. 2:
"Waiver of the blood test (what if one party is under 60?)"
KRS 402.120(1), as amended by H.B. 408, reads:
"Each person except persons sixty (60) years of age or older making application for a marriage license shall, at any time within fifteen days prior to the application, be examined by a physician authorized to practice medicine in Kentucky as to the existence or nonexistence of any stage of syphilis infection that is or is likely to become communicable."
Here again, under the literal language of the subsection, the applicant under 60 must take the blood test and file the result with the application. The applicant who is 60 or older is not required to take the blood test.
In addition, there is a difference in the 3-day waiting provision of KRS 402.080(2) and the blood test provision of KRS 402.120(1). The waiting period involves the remaining on file in the clerk's office of the application for a marriage license. The application of the male and female are treated as one application, as far as the clerk's records are concerned. However, as relates to KRS 402.120, which covers the blood test, such blood test is administered and considered on an individual basis, since the presence or nonpresence of syphilis relates strictly to each individual applicant.
Question No. 3:
"Concerning the bride retaining her name. (Not taking the name of her husband) and, how to report to the Bureau of Vital Statistics the retained name. Ex. Mrs. Jane Doe marries Mr. John Smith, but does not wish to be known as Mrs. Jane Doe-Smith."
We concluded in OAG 74-902, copy enclosed, that there is no statute or applicable case decision in Kentucky, generally, compelling the wife to take the husband's surname. The general common law rule, that anyone may change his or her name, except where there is an intent to defraud, has not been abrogated in Kentucky.
An exception to the general rule is that a married woman applying for a driver's license in Kentucky must apply in the surname of her husband. See Whitlow v. Hodges, (U.S.C.A. -6, 1976) 539 F.2d 582.
In Burke v. Hammonds, Ky., App., 586 S.W.2d 307 (1979), a case involving the right of the mother to change her children's father's surname, pointed out that Kentucky recognizes the common law right of any person to informally change their name by public declaration; and that KRS 401.010 is not intended to abrogate the common law, but is merely to insure that a permanent record is made of the name change, citing Winkenhofer v. Griffin, Ky., 511 S.W.2d 216 (1974).
Divorce is a special situation, governed by KRS 403.230(2). Under that subsection upon request by a wife whose marriage is dissolved or declared invalid, the court may, and if there are no children of the parties shall, order her maiden name or a former name restored. Peniston v. Peniston, Ky., 511 S.W.2d 675 (1974) 676.
Implicit in the common law rule permitting a name change is the premise that there is no statute or case decision in Kentucky requiring the bride at the time of marriage to take her husband's surname. See OAG 74-902, mentioned above. Cf. KRS 402.100 [form of marriage license] . Thus when Jane Doe marries John Smith, she may simply be called Jane Doe. Your question is: How does the county clerk report such marriage to the Department for Human Resources for vital statistics purposes.
KRS 213.330 reads in part:
"Each county clerk, shall, on or before the tenth day of each month, furnish to the department for human resources from the marriage licenses issued and the marriage certificates returned to the clerk during the previous month such information as may be required by the department for human resources upon forms prescribed and furnished by the department for human resources. "
The Director of Vital Statistics has informed us that the DHR has issued no implementing regulation. The answer to your question is that you report simply the names of the parties who are applicants to each marriage license issued and returned as completed. It is really not your problem to be concerned with whether or not the female applicant, who gets married, retains her original family name.