New York Domestic Relations Law states:
It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within 60 days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed …, DRL § 13.
In law, the use of the word “shall” generally means it is a mandate and “necessary” is in there, too. However, Domestic Relations Law also provides:
License, when to be obtained
The provisions of this article pertaining to the granting of the licenses before a marriage can be lawfully celebrated apply to all persons who assume the marriage relation in accordance with subdivision four of section eleven of this chapter. Nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age nor to render void any marriage between minors or with a minor under the legal age of consent where the consent of parent or guardian has been given and such marriage shall be for such cause voidable only as to minors or a minor upon complaint of such minors or minor or of the parent or guardian thereof, DRL § 25 .
A New York marriage will not be rendered void for failure to procure a marriage license. Further, precedent makes it clear that there is a presumption favoring validity of a marriage, and the court is to look to the facts and evidence as to the existence of a marriage between parties. The issue of determining the validity of a marriage has long been before New York courts, not only in matrimonial actions but in estate contests.
The principle followed by New York courts can be summed up by In Re Tompkins: “The presumption of the validity of a marriage is sufficiently strong to cast the burden of showing its invalidity upon those who attack it,” 207 App. Div. 166, 176 (1st Dept. 1923). This has led to some interesting cases.
In Persad v. Balram, the parties participated in a Hindu marriage/prayer ceremony in Brooklyn, New York in 1994, 187 Misc. 2d 711 (Queens Cty. Sup. Ct. 2001). The ceremony was presided over by an ordained Hindu priest. The court summarized the case as: “Essentially, the plaintiff contends the marriage is invalid for two reasons: first, the religious ceremony did not comport with the formal legal requirements under the Domestic Relations Law; second, the religious ceremony was merely a custom conducted prior to the parties living together and the parties did not intend to be married until they participated in a civil ceremony.”
The court rejected the claim that the marriage was invalid, stating, “There is an old cliche that goes ‘if it walks like a duck and quacks like a duck, and looks like a duck, it’s a duck,” the court held, “Essentially, the Domestic Relations Law establishes that where parties participate in a solemn marriage ceremony officiated by a clergyman or magistrate wherein they exchange vows, they are married in the eyes of the law.”
In Helfond v. Helfond, the parties had participated in a marriage ceremony, in front of two witnesses, and performed by a judge, 280 N.Y.S. 2d 990 (Nassau Cty. Sup. Ct., 1967). However, the judge was from Family Court and he performed the marriage outside of his jurisdiction. The Helfond court wrote, “Marriage, while a civil contract, is different from the ordinary contract in that it is affected by a vital public interest.” The court concluded that, “It would be contrary to public policy to permit one of the parties, when a difference has arisen between them, to deny the validity of the marriage.”
There is even a case in which the parties were married in New Jersey, which specifically requires a marriage license be obtained for a marriage to be valid, In re Farraj, 23 Misc. 3d 1109 (Kings Cty. Surr. Ct. 2009). In Farraj the parties, residents of New York, traveled to New Jersey for the marriage ceremony, but no marriage license was obtained from New Jersey. The court held, “Inasmuch as New York has the most significant relationship with the parties and the marriage, the laws of New York therefore govern the validity of the marriage,” and held the marriage valid under New York law.
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.