TN 3 (11-11)
PR 05405.037 North Dakota
A. PR 12-008 Validity of a Marriage in North Dakota (NH Duaine )—REPLY
DATE: October 26, 2011
North Dakota does not have statutory language that would nullify a marriage obtained without a license, and its licensing statute is directory, not mandatory.
A marriage solemnized in North Dakota without a license is, therefore, valid.
You asked whether a marriage solemnized without a license in North Dakota is valid.
Yes. We conclude that North Dakota courts would follow the majority view that a marriage solemnized without a license is valid, in the absence of express statutory language nullifying the marriage. North Dakota’s licensing statute does not have such express statutory language.
According to information you provided, the claimant and the insured were married in a religious ceremony on September 7, 2008, in Grand Forks, North Dakota. Both were free to marry. The insured died on June 5, 2011, while residing in North Dakota. The claimant applied for widow’s benefits on his earnings record. The claimant admitted she and the insured did not obtain a marriage license because “they were both in their 80’s when they married[,] . . . and for legal purposes wanted to keep all of their other income/possessions separate in order to avoid any legal problems with inheritance . . . to kids.” She submitted the insured’s obituary and a souvenir marriage certificate in support of her claim. The obituary notes the insured “married” his first wife in 1944, and after the death of their respective spouses, he and the claimant “rekindled their partnership on September 7, 2008[,] in a ceremony at St. Mary’s Catholic Church of Grand Forks.” The obituary also lists the claimant among the insured’s survivors and identifies her as his “wife.” The souvenir marriage certificate shows the names of both parties before but not after the marriage. The person who officiated at the ceremony and two witnesses signed the certificate.
To determine a claimant’s relationship as the insured’s widow or widower, the agency looks to the laws of the state where the insured had a permanent home when he or she died. 20 C.F.R.
§ 404.345. Here, the insured died while a resident of North Dakota. If he and the claimant were validly married under North Dakota law at the time the insured died, the relationship requirement is met. Id.
North Dakota courts have not specifically addressed the issue of whether a marriage solemnized without a license is valid. Most courts that have considered the issue have decided the question based on whether the state’s licensing statute is mandatory or merely directory. These courts reasoned that where a statute “require[s] that a marriage ceremony be preceded by the procuring of a license in accordance with the statute, . . . even where such a statute penalizes infraction, it does not invalidate a marriage solemnized without a license . . . in the absence of express statutory language nullifying the marriage for noncompliance with the licensing provisions.” See F.M. English, Annotation, Validity of Solemnized Marriage as Affected by Absence of License Required by Statute, 61 A.L.R. 2d 847 § 2[a], §3 (1958); see also 52 Am. Jur. 2d Marriage §§ 31, 33, 34 (2011). This is “[t]he general rule . . . even . . . where common-law marriages are no longer recognized, provided the statutes regulating marriage do not contain words expressly nullifying nonconforming marriages.” English, supra § 2[a]. We think North Dakota would follow this approach, North Dakota courts have cited the American Law Reports for persuasive authority regarding other marriage questions. See, e.g., Gibbons v. Blair, 376 N.W.2d 22, 24 (N.D. 1985). and thus look to North Dakota’s licensing statute.
Section 14-03-10 provides that “[a] person may not solemnize any marriage until the parties to the marriage produce a license regularly issued not more than sixty days before the date of the marriage . . . .” The only penalty for a person who violates this or any other provision of the marriage contract statute, “[u]nless otherwise provided,” is he or she “is guilty of a class A misdemeanor.” N.D. Cent. Code Ann. § 14-03-28. The marriage contract statute does not expressly state that nonconformance with a licensing provisions voids the marriage. By comparison, as an example, Missouri’s statute provides that “no marriage hereafter contracted shall be recognized as valid unless the license has been previously obtained . . .” Mo. Ann. Stat. § 451.040(1) (West 2003). As such, Missouri courts have held that a marriage without a license is invalid. Nelson v. Marshall, 869 S.W. 2d 132 (Mo. App. 1993). In fact, the legislature has expressly defined void marriages to include only incestuous and bigamous marriages. See N.D. Cent. Code §§ 14-03-03 (Void marriages), 14-03-06 (Marriage of person having husband or wife void); see also Johnson v. Johnson, 104 N.W.2d 8, 13 (N.D. 1960) (citations omitted) (“Only in the instance of incestuous marriage, or marriage by a person having a former husband or wife while such former marriage was then in force, is the marriage a nullity.”).
Given the absence of statutory language that would nullify or void a marriage obtained without a license, we view the above provisions as directory rather than mandatory. We acknowledge that section 14-03-10 contains the negative phrase “may not,” and “[w]here statutory restrictions are couched in negative terms they are usually held to be mandatory.” 3 Sutherland Statutory Construction § 57:9 (7th ed.). However, section 14-03-02 governing lawful age for marriage contains the same negative phrase Section 14-03-02 (Lawful age for marriage) provides that “a marriage license may not be issued” to a person below the age of 16 and only to a person between 16 and 18 years of age with consent of the parents or guardian.
; but it is clear that the provisions governing lawful age are merely directory, since the marriage of an underage party is only voidable (rather than absolutely void). See N.D. Cent. Code § 14-04-01(1). Indeed, the North Dakota Supreme Court has commented that “[m]arriage . . . is regarded with favor by the law, and statutes should not be construed so as to make a marriage null, unless the legislative intent is clear and unequivocal.” Woodward v. Blake, 164 N.W. 156 (N.D. 1917); cf. Schumacher v. Great Northern Ry. Co., 136 N.W. 85, 86 (N.D. 1912) (legislature intended the solemnization requirement of the marriage contract statute to be mandatory); N.D. Op. Atty. Gen. No. L-62, 2002 WL 31426678 n. 1 (Oct. 25, 2002) (concluding a county recorder may not perform a marriage ceremony outside of his or her official jurisdiction, but “[i]n the event a recorder has already performed a marriage ceremony outside of the county in which elected, there is authority for the proposition that ‘a lack of qualification or right on the part of the minister or other official will not invalidate [a] marriage’”) (citations omitted).
The marriage license application section also supports our conclusion that the licensing provision at issue is merely directory. Section 14-03-17 suggests the state’s purpose in requiring a couple to obtain a license prior to solemnization of the marriage is to ascertain whether any legal impediments to the marriage exist. To help the recorder or designated official determine “the legality of the contemplated marriage,” the parties must submit affidavits that each is of legal age to marry (if not, a parent or legal guardian must provided written content), and free to marry. Id. §§ 14-03-17(1)(a), (b). As noted above, the legislature has explicitly declared that only two legal impediments void a solemnized marriage: a marriage involving a person who is not free to marry or a marriage defined as incestuous.
Here, there were no legal impediments to the marriage, and it seems from the information provided that the claimant and the insured held themselves out as married. Although the couple appears to have purposefully failed to obtain a license, we do not think this would impact a court’s analysis. As discussed, most courts have simply determined whether the state’s licensing statute is mandatory or directory – and we believe a North Dakota court would find that the licensing provision at issue here is merely directory.
The claimant’s ceremonial marriage to the insured is valid in North Dakota, despite the fact that the marriage was solemnized without a license.
John Jay Lee
Regional Chief Counsel, Region VIII
Yvette G. Keesee
Assistant Regional Counsel