Request By:
Mr. Robert M. White
Adair County Clerk
Columbia, Kentucky 42728
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a problem in connection with a marriage license. Your letter reads as follows:
On March 19, 1981, I issued a marriage license to Bobby L. Bowe and Euline Grady. For some reason the person performing the marriage ceremony has failed to return completed marriage certificate back to this office.
After several discussions with the parties involved the performing minister states that the license was lost in the mail. The couple is quite concerned about this, and I would appreciate your opinion on the matter. Is it possible and proper for me to issue another license in lieu of the one mentioned above, so the minister will have something to complete and return? If not, what marital status does this leave the couple in?
KRS 402.220 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 the names of at least two (2) of the persons present.
KRS 402.230 provides:
The certificate shall be filed in the county clerk's office. The county clerk shall keep in a record book a fair register of the parties' names, the person by whom and the date when the marriage was solemnized, and shall keep an index to the book in which the register is made.
See KRS 402.100 for the form of the marriage license, and as relates to the "certificate of time and place of marriage" , as mentioned in KRS 402.220 and 402.230, above. We assume that the marriage license was validly issued by your office pursuant to KRS 402.080, and that the marriage ceremony, under the license, was validly performed by the minister pursuant to KRS 402.060.
As we said in OAG 64-776, copy enclosed, there is nothing in KRS Chapter 402 to suggest that the validity of the marriage hinges upon whether or not the return of the license and certificate to the county clerk, under KRS 402.220, is effected. The court, in
Munsey v. Munsey, Ky., 303 S.W.2d 257 (1957), wrote this about proof of marriage at page 259:
The law favors marriage, and indulges many presumptions relative to the legality of a marriage which is shown to have been celebrated by the performance of a ceremony. In the absence of record evidence, a marriage may be proved by parol evidence.
Vest's Adm'r v. Vest, 234 Ky. 587, 28 S.W.2d 782.
Thus, in the absence of the statutory certificate, normally of record, a marriage may be proved by parol evidence.
We gather from your letter that the minister actually, on the basis of the presented license of marriage, performed the marriage ceremony and completed the certificates mentioned in KRS 402.100. However, in returning the certificate to you as clerk, the license-certificate was lost in the mail.
In view of the public policy favoring marriage, it is our opinion that you as clerk could, where the license is lost, issue a certified "duplicate" marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license to your office for filling. See KRS 422.020(5),
Smith v. Gowdy, Ky., 96 S.W. 566 (1906); and
Commonwealth v. Denham, 303 Ky. 413, 197 S.W.2d 907 (1946) 908. The latter case cites the generally accepted rule that a certified copy of a public record is admissible in evidence as proof of its contents. We understand that you have the necessary data on record in your office to enable you to certify a duplicate copy of the marriage license as outlined in KRS 402.100. However, prior to your issuing a duplicate license, you should first require the minister and the wedded parties to sign an affidavit, to be filed with you as clerk, stating, it those are the facts, that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties.
The courts have held that the powers of officers are limited to those conferred expressly by statute or which exist by necessary and fair implication.