PR 05405.041 Oregon

A. PR 01-214 Parolee's Marriage in Oregon

DATE: September 27, 2001

1. SYLLABUS

In Oregon, it is only by court order, and not by the sole discretion of the probation officer, that a special condition of probation may be imposed. A special condition of probation prohibiting entry into marriage without court approval can be valid.

2. OPINION

You have asked whether a probationer in Oregon has to obtain permission from his probation officer to marry.

FACTUAL BACKGROUND

Mrs. Robin W. W~ married Harley W. W~ on November 24, 1949 in Spokane, Washington. They did not divorce until July 25, 1990. It appears from the information you sent us that Robin was granted divorced spouse benefits on Mr. W~'s record based on an application filed on February 24, 1994.

Robin purportedly married Mr. Vernon C. W~ on May 1, 1989, a marriage that was invalid because she was not finally divorced from Mr. W~. According to Robin, she and Mr. W~ remarried on two separate occasions: on February 15, 1991, and again on May 1, 2000. Robin believes that both of these remarriages are also invalid because she and Mr. W~ did not obtain permission from Mr. W~'s parole officer to remarry.

DISCUSSION

In Oregon, a defendant convicted of a felony does not automatically sustain loss of civil rights, including the right to enter into contracts of marriage. See O.R.S. § 137.275. However, a court “may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the defendant for the protection of the public or reformation of the offender, or both.” O.R.S. § 137.540(2) (emphasis added). The court must make a factual record showing that a special condition is appropriate under the circumstances of the case. See State v. Quackenbush, 832 P.2d 1236, 1237 (Or. App. 1992).

A specific condition of probation prohibiting entry into marriage without court approval can be valid. The Oregon Court of Appeals has stated: “[I] assessing the reasonableness of probation conditions a reviewing court will bear in mind the purposes sought to be served by probation and will recognize the wide discretion of the trial court in such matters. . . . We find no abuse of that discretion in the imposition of the condition requiring court approval prior to marriage.” State v. Allen, 506 P.2d 528, 529 (Or. App. 1973).

With regard our case, note that it is only by court order, and not by the sole discretion of the probation officer, that a special condition of probation may be imposed. See State v. Maag, 597 P.2d 838, 838 (Or. App.1979) (conditions of probation are fixed by the court, not by probation officers). In light of this, we suggest that you do the following:

  1. ask Robin to produce a copy of the court's order placing Mr. W~ on probation;

  2. check whether the court order imposed a special condition that prohibits Mr. W~ from marrying without the court's approval; and

  3. ascertain how long Mr. W~ was on probation (compare those dates with the dates Robin and Mr. W~ purportedly remarried).


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