Request By:
Mr. John T. Robertson
Christian County Clerk
Courthouse - 511 S. Main Street
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The first question you present for our opinion is the correct procedure in licensing ministers to solemnize marriages in Kentucky.
KRS 402.060 reads:
No minister or priest shall solemnize marriage until he has obtained a license therefor from the county judge/executive of the county in which he resides, or in which he serves as a minister or priest in a place of worship, upon satisfying the county judge executive that he is a person of good moral character and in regular communion with his religious society, and upon giving covenant to the Commonwealth, with good surety, not to violate the law of this state concerning marriage. Any such license may be annulled by any county judge/executive, after notice to the person holding the license.
Under KRS 402.060 only the county judge executive of the county in which a minister or priest resides, or in which he serves as a minister or priest in a place of worship, has the authority to issue a license to such qualifying minister or priest. In addition, only the county judge executive of such county has the authority to take the bond and approve the surety proffered.
As to the form of the license, no definite and detailed form is prescribed. See OAG 80-375. KRS 402.060 does require a formal document, since a license in this context denotes a formal written, typed or printed document. There is no suggestion that the license can be given orally, since such license would furnish no record for formal proof.
Such license should include a statement that the license is being issued pursuant to KRS 402.060 to the licensee who is deemed by the issuer to qualify under the express terms of KRS 402.060. The license should state in effect that the license to solemnize marriages in Kentucky is issued to John Doe, Minister (or priest, as the case may be), pursuant to KRS 402.060, and that the licensee resides in that county or serves as a minister or priest in a place of worship in that county. It should state that the county judge executive is satisfied that the applicant for license is a person of good moral character and in regular communion with his religious society; and that the applicant has made bond to the Commonwealth, with good surety, not to violate the law of Kentucky concerning marriage. The license, must, of course, be signed by the county judge executive of the appropriate county, designating his county and the date of the issuance of the license and approval of the bond.
Finally, the licenses may be issued by the county judge executive by way of his executive order book, containing the above essential data, the original of which, along with the executed bond, must be kept on record in the county clerk's office. As we said in OAG 80-375, the licensee, if he wishes, may obtain a certified copy of the executive order issuing the license for his personal use.
Ladd v. Commonwealth, 313 Ky. 754, 233 S.W.2d 517 (1950).
Thus the county judge executive is responsible for taking the application for a license and then issuing a license, if the applicant qualifies, by way of an executive order. He is responsible for taking the bond and approving the surety. Then he is required to file the original executive order and bond with you, as county clerk. The fee for the marriage license, bond, certificate and recording is $14.00. See KRS 64.012, as amended in the 1982 session (Ch. 161, § 1).
You inquire as to the procedure for a new marriage license bond when the surety dies. As we said in OAG 69-698, the death of a surety would require a new bond. The amount of the bond is left to the sound discretion of the county judge executive.
Next, your question is under what circumstances may a justice of the peace perform marriages?
A justice of the peace may perform marriages if he is expressly authorized to do so in writing by the Governor of Kentucky or the county judge executive of his county. KRS 402.050(1)(b). Such authority should take the form of an executive order as applies to the governor and the county judge executive. The original order should be filed in your office. No bond is involved. The clerk's fee would be $5.00. See KRS 64.012, as amended in 1982 (Ch. 161, § 1).
You raise the question as to the proof of age where an application for a marriage license is made.
KRS 402.020(4) prohibits a marriage when either the male or female applicant is under eighteen (18) years of age, unless the written consent of the father, or mother, or statutory guardian is obtained.
KRS 402.210 provides that if either of the parties is under eighteen (18) years of age and not before married, no license shall issue without the written consent of a parent or guardian, etc. KRS 402.080(1) provides that the license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow. Subsection (2) of that statute provides that where both applicants are sixty (60) years of age or older, the marriage license application is not subject to the three (3) days waiting period.
While there is no express statutory provision covering the proof of age of applicants, it is our opinion that any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.020, 402.210, and 402.080, to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. Otherwise the age qualification would remain in the realm of pure conjecture. Who can look at a person and tell precisely how old he or she is? In
Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544, 169 S.W.2d 621 (1943), the court wrote that a statute should not be construed so as to lead to an absurd conclusion, but should be given practical interpretation to carry out its manifest purpose. Further, a statute need not expressly state what is necessarily implied.
National Surety Co. v. Commonwealth ex rel Coleman, 253 Ky. 607, 69 S.W.2d 1007 (1934).
The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age, realizing in its legislative wisdom that marriage is challenging enough for the maturest and best of humanity.
Thus the county clerk must have some ministerial device to promote the purpose of the legislation. It is our opinion that the county clerk may require that the applicants for marriage produce for copying a driver's license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 75-594 is modified accordingly. See KRS 402.100 (marriage certificate form).
The last question concerns under age applicants and pregnancy.
Under KRS 402.020, if the female applicant is pregnant, and the father, mother and guardian all refuse to give written consent to marriage, the male or female, or either of them, under eighteen (18) years of age, may apply to a district judge for permission to marry, which application may be granted, in the discretion of the judge. OAG 74-524 is modified accordingly (statutory change).