H. B. 2865
(By Delegates Hutchins, Coleman, Tillis, Buchanan,
Linch, Stemple and Smirl)
[Originating in the Committee on the Judiciary]
[January 14, 1998]
A BILL to amend and reenact article one, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; and to amend and reenact section ten, article one,
chapter fifty-nine of said code, relating to a recodification
of the general laws of the state pertaining to marriage,
intended to eliminate obsolete matter, assemble under proper
headings relevant statutory and case law, substitute modern
verbiage for archaic forms, clarify involved code sections and
provide a general orderliness that has heretofore not existed;
requiring every marriage to be solemnized under a license;
determining the county in which applicants apply for a
marriage license; requiring a waiting period before issuance
of a marriage license and providing for issuance in emergency
circumstances; describing the contents of an application for
a marriage license; requiring both parties to sign the
application; requiring proof of age; requiring recordation of
the application for a marriage license; setting forth a form
for a marriage license; providing for an expiration date for a marriage license; providing for endorsement of the marriage
license by the person solemnizing the marriage; requiring the
return of the original license to the clerk of the county
commission; providing for a register of marriages in the
office of the clerk of the county commission; establishing the
age of consent for marriage; providing for consent by parents
or guardian; providing that marriage of underage person is not
void until annulled; providing for validation of marriage by
underage person upon reaching age of consent; prohibiting
marriage of persons related by consanguinity or affinity;
describing who may be authorized to perform marriages;
prescribing the qualifications of a minister, priest or rabbi
for performing marriages; providing for performance of
marriages according to rites and ceremonies; defining certain
unlawful acts by county clerks and providing criminal
penalties therefor; providing criminal penalties for persons
who enter into a consanguineous marriage; providing for
suspension of authority to perform marriages for failure to
endorse and return a marriage license; making it unlawful to
solicit the celebration of a marriage ceremony and providing
for the revocation of authority to perform marriages;
validating certain marriages when person solemnizing the
marriage was without authorization or when the license was
expired; applying the law of this state to marriages performed
outside of this state with intent to evade the law; providing
that marriages of another jurisdiction between persons of the same sex will not be given effect by this state; and
establishing the fees to be charged by the clerk of the county
commission when issuing a marriage license.
Be it enacted by the Legislature of West Virginia:
That article one, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. MARRIAGE.
Part 1. Application for Marriage License.
§48-1-101. Necessity of marriage license.
Every marriage in this state shall be solemnized under a
marriage license issued by a clerk of the county commission in
accordance with the provisions of this article. If a ceremony of
marriage is performed without such license, the attempted marriage
is void, and the parties do not attain the legal status of husband
and wife.
§48-1-102. Where application for marriage license is made.
(a) If one or both of the applicants are residents of this
state, they may apply for a marriage license to be issued by the
clerk of the county commission of the county in which a resident
applicant usually resides. If both parties are nonresidents of
this state, they may apply for a license to be issued by the clerk
of the county commission in any county in this state.
§48-1-103. Waiting period before issuance of marriage license;
issuance of license in case of emergency or extraordinary circumstances.
(a) Except as otherwise provided in subsection (b) of this
section, the clerk of the county commission may not issue a
marriage license until two full days elapse after the day the
license application is filed.
(b) In case of an emergency or extraordinary circumstances,
as shown by affidavit or other proof, a circuit judge of the county
in which an application for a marriage license is to be filed may
order the clerk of the county commission to issue a license at any
time before the expiration of the waiting period. The clerk of the
county commission shall attach a certified copy of the judge's
order to the application and issue the marriage license in
accordance with the order. If the judge or judges of the county in
which the application is to be filed are absent or incapacitated,
the order may be made and directed to the clerk of the county
commission of the county by a circuit judge in any adjoining
judicial circuit, or a special judge appointed by the supreme court
of appeals.
§48-1-104. Contents of application for marriage license.
(a) The application for a marriage license shall contain a
statement of the full names of both parties, their social security
account numbers, dates of birth, places of birth and residence
addresses.
(b) Every application for a marriage license shall contain
the following statement:
"The laws of this state affirm your right to enter into this marriage and at the same time to live within the marriage free from
violence and abuse. Neither of you is the property of the other.
Physical abuse, sexual abuse, battery and assault of a spouse or
other family member, and other provisions of the criminal laws of
this state are applicable to spouses and other family members and
these violations are punishable by law."
§48-1-105. Execution of application for marriage license.
Both parties to a contemplated marriage are required to sign
the application for a marriage license, under oath, before the
clerk of the county commission or another person authorized to
administer oaths under the laws of this state.
§48-1-106. Proof of age.
(a) At the time of the execution of the application, the
clerk or the person administering the oath to the applicants shall
require evidence of the age of each of the applicants. Evidence of
age may be as follows:
(1) A certified copy of a birth certificate or a duplicate
thereof produced by any means that accurately reproduces the
original;
(2) A voter's registration certificate;
(3) An operator's or chauffeur's license;
(4) The affidavit of both parents or the legal guardian of the
applicant; or
(5) Other good and sufficient evidence.
(b) If an affidavit is relied upon as evidence of the age of
an applicant, and if one parent is dead, the affidavit of the surviving parent or of the guardian of the applicant is sufficient.
If both parents are dead, the affidavit of the guardian of the
applicant is sufficient. If the parents of the applicant live
separate and apart, the affidavit of the parent having custody of
the applicant is sufficient.
§48-1-107. Recordation of application for marriage license.
The application for a marriage license shall be recorded in
the register of marriages provided for in section two hundred three
of this article. The date of the filing of the application shall
be noted in the register. The notation, or a certified copy
thereof, is legal evidence of the facts therein contained.
Part 2. Marriage License.
§48-1-201. Form of marriage license.
(a) The marriage license shall be in form substantially as
follows:
"Marriage License.
State of West Virginia, County of __________________, to wit:
To any person authorized to celebrate marriages:
You are hereby authorized to join together in matrimony
__________________________ and ______________________________.
This authorization is expired after the _____ day of
_____________________, _______.
Given under my hand, as clerk of the county commission of the
county of ____________, this _____ day of ______________, _____.
__________________________
Clerk of the County Commission"
(b) The expiration date which the clerk places on the marriage
license is the last day of the second full calendar month following
the issuance of the license.
§48-1-202. Endorsement and return of licenses by persons
solemnizing marriage; duties of clerk pertaining
thereto.
(a) The person solemnizing a marriage shall retain the
marriage license and place an endorsement on it establishing the
fact of the marriage and the time and place it was celebrated. The
person shall not solemnize the marriage authorized by the license
after the expiration date set forth on the license.
(b) Before the sixth day of the month after the month in which
the marriage was celebrated, the person who solemnized the marriage
shall forward the original of the marriage license to the clerk who
issued the license. If the county clerk has not received the
original license within ten days after the expiration date on the
license, the clerk shall notify each of the applicants of that
fact, by certified mail, return receipt requested.
§48-1-203. Register of marriages.
(a) The clerk of the county commission is required to
maintain a suitable book to be used as a register of marriages.
The clerk shall keep a complete record of the following
information:
(1) Factual information that relates to the eligibility of
a person to obtain a marriage license. However, if the license is
issued because the female is pregnant, the pregnancy will not be noted by the clerk in the register of marriages;
(2) Each marriage license issued by the clerk; and
(3) An endorsement by a minister, priest, rabbi, or judge
certifying that the marriage was solemnized.
(b) The clerk shall index the register of marriages in the
names of both parties to the marriage.
Part 3. Capacity to marry.
§48-1-301. Age of consent for marriage; exception.
(a) The age of consent for marriage for both the male and the
female is eighteen years of age. A person under the age of
eighteen lacks the capacity to contract a marriage without the
consent required by this section.
(b) The clerk of the county commission may issue a marriage
license to an applicant who is under the age of eighteen but above
the age of fifteen if the clerk obtains a valid written consent
from the applicant's parents or legal guardian.
(c) Upon order of a circuit judge, the clerk of the county
commission may issue a marriage license to an applicant who is
under the age of sixteen, if the clerk obtains a valid written
consent from the applicant's parents or legal guardian. A circuit
judge of the county in which the application for a marriage license
is filed may order the clerk of the county commission to issue a
license to an applicant under the age of sixteen if, in the court's
discretion, the issuance of a license is in the best interest of
the applicant and if the consent of the parents or guardian has
been given.
(d) A consent to marry must be duly acknowledged before an
officer authorized to acknowledge a deed. If the parents are
living together at the time the application for a marriage license
is made and the consent is given, the signatures of both parents or
the applicant's legal guardian is required. If one parent is dead,
the signature of the surviving parent or the applicant's legal
guardian is required. If both parents are dead, the signature of
the applicant's legal guardian is required. If the parents of the
applicant are living separate and apart, the signature of the
parent having custody of the applicant or the applicant's legal
guardian is required.
(e) If a person under the age of consent is married in
violation of this section, the marriage is not void for this
reason, and such marriage is valid until it is actually annulled.
(f) A marriage by an underage person without a valid consent
as required by this section, though voidable at the time it is
entered into, may be ratified and become completely valid and
binding when the underage party reaches the age of consent.
Validation of a marriage by ratification is established by some
unequivocal and voluntary act, statement, or course of conduct
after reaching the age of consent. Ratification includes, but is
not limited to, continued cohabitation as husband and wife after
the age of consent is attained.
§48-1-302. Prohibition against marriage of persons related within
certain degrees.
(a) A man is prohibited from marrying his mother, grandmother, sister, daughter, granddaughter, half sister, aunt,
brother's daughter, sister's daughter, first cousin or double
cousin. A woman is prohibited from marrying her father,
grandfather, brother, son, grandson, half brother, uncle, brother's
son, sister's son, first cousin or double cousin.
(b) The prohibitions described in subsection (a) of this
section are applicable to consanguineous relationships where
persons are blood related by virtue of having a common ancestor.
(c) The prohibitions described in subsection (a) of this
section are applicable to persons related by affinity, where the
relationship is founded on a marriage, and the prohibition
continues in force even though the marriage is terminated by death
or divorce, unless the divorce was ordered for a cause which made
the marriage, originally, unlawful or void.
Part 4. Marriage Ceremony.
§48-1-401. Persons authorized to perform marriages.
Any minister, priest or rabbi who has complied with the
provisions of section four hundred two of this article, or a judge
of any court of record in this state, is authorized to celebrate
the rites of marriage in any county of this state. Celebration or
solemnization of a marriage means the performance of the formal act
or ceremony by which a man and woman contract marriage and assume
the status of husband and wife.
For purposes of this article, the terms "minister,""priest" or
"rabbi" include, without being limited to, a leader or
representative of a generally recognized spiritual assembly, church or religious organization which does not formally designate or
recognize persons as ministers, priests or rabbis.
§48-1-402. Qualifications of minister, priest or rabbi for
celebrating marriages.
The county commission of any county in this state may make an
order authorizing a person who is a minister, priest or rabbi to
celebrate the rites of marriage in all the counties of the state,
upon proof that the person is eighteen years of age or older and is
duly licensed by, and is in regular communion with, the religious
society of which he or she is a member. The person shall give bond
in the penalty of one thousand five hundred dollars, with surety
approved by the commission. Any minister, priest or rabbi who
gives proof before the county commission of his or her ordination
or authorization by his respective church, denomination, synagogue
or religious society, is exempt from giving the bond.
§48-1-403. Ritual for ceremony of marriage by minister, rabbi or
priest; record of marriage.
A minister, priest or rabbi authorized to celebrate
the rites of marriage shall perform the ceremony of marriage
according to the rites and ceremonies of his religious
denomination, church, synagogue or religious society and the laws
of the state of West Virginia.
A record of each marriage performed, with the names
of the parties, their respective places of residence prior to
marriage, and the date of marriage, shall be kept by the
officiating minister, priest or rabbi in the permanent record of the church, synagogue or religious society which he serves.
Part 5. Offenses and penalties.
§48-1-501. Unlawful acts by clerk of the county commission;
penalties.
(a) It is unlawful for a clerk of the county commission to do
any of the following acts:
(1) To make a false entry as to the date of application for
a marriage license;
(2) To issue a marriage license prior to the end of the
required three-day period (unless a circuit judge dispenses with
this requirement by order pursuant to subsection (b), section one
hundred three of this article);
(3) To issue a license on any Sunday or a legal holiday; or
(4) To receive an application for a marriage license or issue
a marriage license in any place other than the office of the clerk
of the county commission.
§48-1-502. Issuing marriage license contrary to law; penalty.
A clerk of the county commission who knowingly issues a
marriage license contrary to law is guilty of a misdemeanor, and,
upon conviction thereof, shall be punished by a fine not exceeding
five hundred dollars, or by confinement in jail for not more than
one year, or by both such fine and confinement, in the discretion
of the court.
§48-1-503. Consanguineous marriage; penalty.
(a) If a person marries another who is within the degrees of
relationship described in section three hundred two of this article, and the relationship is founded on consanguinity, the
person is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five hundred dollars, or confined in
jail not more than six months, or both, in the discretion of the
court.
(b) If a person who is a resident of this state marries in
another state or country, the person violates subsection (a) of
this section if:
(1) The persons married are within the degrees of
relationship described in section three hundred two of this article
and the relationship is founded on consanguinity;
(2) The person intends to evade the law of this state;
(3) The person intends to return and reside in this state;
and
(4) The persons, after marrying, return to this state and
cohabit as man and wife.
§48-1-504. Failure to endorse and return license; penalties.
If a minister, priest or rabbi who is authorized to celebrate
marriages in this state willfully fails to comply with the
provisions of section two hundred two of this article, relating to
the endorsement and return of a license, his or her authority shall
be suspended for a period of not less than six months nor more than
one year. If the person gave bond under the provisions of section
four hundred two of this article, the conditions of the bond shall
be deemed to be broken and the bond shall be forfeited as otherwise
provided by law. The county clerk shall notify the prosecuting attorney of the county of any failure to comply with section two
hundred two of this article. The prosecuting attorney shall
institute proceedings before the circuit court to suspend the
person's authority to celebrate marriages. The court shall
determine all questions of law and fact.
§48-1-505. Unlawful to solicit celebration of marriage, etc.
(a) It is unlawful for any minister, priest or rabbi in any
manner to solicit the celebration of a marriage ceremony.
(b) It is unlawful for a minister, priest or rabbi to give
anything of value, directly or indirectly, as a reward to any
person who may accompany, bring, send or direct the holders of a
marriage license to the minister, priest or rabbi.
(c) If a person violates the provisions of subsection (a) or
(b) of this section, his or her license to celebrate marriages
shall be revoked, and no such license shall thereafter be issued
to the person. It is the duty of the prosecuting attorney of the
county in which the violation occurs to institute proceedings in
the circuit court to revoke the license. Reasonable notice of
proceedings to revoke a license shall be given to the licensee.
The court shall determine all questions of law and fact.
Part 6. Miscellaneous provisions.
§48-1-601. Belief of parties in lawful marriage validates certain
defects.
If a marriage is solemnized by a person professing to be
authorized to celebrate marriages when, in fact, the person is not
authorized, or if a marriage is solemnized after the expiration date set forth on the license, the marriage is not void and subject
to a judgment of nullity based on that fact alone if:
(1) The marriage is lawful in all other respects, and
(2) The marriage is consummated with a full belief on the part
of either or both of the persons married that they have been
lawfully joined in marriage.
§48-1-602. Marriage out of state to evade law.
If a resident of this state marries in another state or
country, the marriage is governed by the same law, in all respects,
as if it had been solemnized in this state if, at the time of the
marriage:
(1) The marriage would have been in violation of section two,
article two of this chapter if performed in this state;
(2) The person intended to evade the law of this state; and
(3) The person intended to return and reside in this state.
§48-1-603. Certain acts, records, and proceedings not to be given
effect in this state.
A public act, record or judicial proceeding of any other
state, territory, possession or tribe respecting a relationship
between persons of the same sex that is treated as a marriage under
the laws of such other state, territory, possession, or tribe, or
a right or claim arising from such relationship, shall not be given
effect by this state.
CHAPTER 59. FEES, ALLOWANCES AND COSTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.
(a) For the purpose of this section, the word "page" is
defined as being a paper writing of not more than legal size, 8 ½"
x 13".
(b) The clerk of the county commission shall charge and
collect the following fees:
When a writing is admitted to record, for receiving
proof of acknowledgment thereof, entering an
order in connection therewith, endorsing clerk's
certificate of recordation thereon and indexing in
a proper index, where the writing is a deed of
conveyance, trust deed, lease, or power of attorney
concerning real estate $ 2.00
If such writing contains more than two pages, for each
additional page, in counties where recording is
done by photograph, fifty cents; and in
counties where recording is done by typewriter,
and such writing contains more than one thousand
words, three cents for each additional twenty words.
For recording a plat accompanying a deed or other
writing 2.00
If such plat contains more than one hundred twenty square
inches, for each additional square inch .010
For recording and indexing a map to be placed in map book 3.00
If such map contains more than one hundred twenty square
inches, for each additional square inch .010
For recording and indexing assignment 2.00
If such assignment contains more than one reference to the
record of property assigned, for each reference 1.00
If such assignment does not give the reference to the
record of property assigned, for search of record to
determine such book and page .50
If such assignment contains more than two pages, for each
additional page 1.00
For recording and indexing and noting release of lien2.00
If such release contains more than one reference to lien
released, for each lien released thereby 2.00
If book and page reference to lien released is omitted,
for search of record to determine such book and page .50
For filing or refiling and entering conditional sales
contract 2.00
For recording and indexing a satisfaction of a conditional
sales contract 2.00
For filing each financing, continuation or termination
statement or other statement or writing permitted to
be filed under chapter forty-six of the code2.00
For filing, preserving and indexing a security agreement
filed under chapter forty-six of the code 3.00
For recording and indexing a certificate of incorporation 2.00
If such certificate contains more than two pages, for
each additional page 1.00
For filing and indexing a certificate showing the name or
names of a person or persons conducting business
under an assumed name 2.00
For certifying to the assessor a transfer of real estate
under section eight, article four, chapter eleven of
the code 1.00
For swearing the witnesses and entering in the order or
minute book, all orders in relation to the proof
of a will which is admitted to record without
contest, and copying such order on the will or on a
paper annexed thereto, when fully proved and but one
order 3.00
If the will be but partially proved on one day, for the
order and entering the same on the will or paper
annexed thereto 1.00
For each subsequent order and entering the same on the
will or paper annexed thereto 1.00
For the same services where there is a contest 8.00
For preparing notices in connection with contest, or any
hearing, each notice 1.00
For recording a will and the matter recorded therewith in
the will book 2.00
If will and matter recorded therewith contains more than
two pages, for each additional page 1.00
For entering orders and transmitting papers in case of
appeal 3.00
If such order and transmittal contains more than five
pages, for each additional page 1.00
If any personal representative or guardian qualify for
administering necessary oaths, notating the bond,
entering and copying on the will, order granting
probate or administration, making out copy of such
order for personal representative or guardian,
entering and copying orders of appraisement 2.00
For each additional copy of qualification order 1.00
If several personal representatives qualify on the same
estate at the same time or term the same fee shall be
charged as if one had qualified, to wit 2.00
For entering and copying an order granting a license
under provisions of article twelve, chapter eleven of
the code 1.00
For certificate for a license or endorsing assignment
thereof 1.00
For issuance of marriage license, for preparing the
application and administering the oath, for
registering and recording the license, for mailing
acknowledgment of minister's return to one of
licensees, for notifying one of licensees after sixty
days the expiration date of the license of the
nonreceipt of the minister's return 8.00
One dollar of the latter fee shall be paid by the county
clerk into the state treasury as a state registration
fee, in the same manner that license taxes are paid
into the treasury under article twelve, chapter eleven
of the code.
For search of anything in his office of over a year's
standing, unless otherwise required by statute .50
For recording certificates and posting a copy thereof
under the provisions of section two, article one,
chapter thirty-four of the code 1.50
For docketing or redocketing under article three, chapter
thirty-eight of the code, a judgment, decree, bond or
recognizance 1.00
If such writing contains more than one page, for each
additional page 1.00
For recording and indexing an execution and noting the
date of issuance and the date of filing of same upon
the judgment record 1.50
For making out a transcript of the record and proceedings
in any case in due form so that the same may be used
in appellate court, such fee shall be the same as
specified herein for recording.
For making out, in any other manner than copying, any
paper to go out of the office which is not otherwise
provided for 1.50
If such paper contains more than two pages, for each
additional page 1.00
For any copy, if it be not otherwise provided for 1.50
If such copy contains more than two pages, for each
additional page 1.00
For annexing the seal of the court to any paper, writing
certificates of clerk accompanying it 1.00
For writing a certificate of the president of the court
or judge, when the clerk be required to do so 1.00
For recording and indexing an inventory or sale bill 1.50
If such writing contains more than two pages, for each
additional page 1.00
For entering an order confirming the report of a
fiduciary 1.00
For recording and indexing such report and matter recorded
therewith 3.00
If such report contains more than four pages, for each
additional page 1.00
For recording and indexing any bond required by law to be
recorded, including the certificate or other evidence
of its execution 1.50
If such bond and certificate contains more than two pages,
for each additional page 1.00
For recording and indexing a notice of mechanic's lien 1.50
If such notice contains more than two pages, for each
additional page 1.00
For recording contract limiting liability of owner and
bond of contractor to be filed therewith, as
prescribed in article two, chapter thirty-eight of
the code 2.00
If such contract and bond contains more than two pages,
for each additional page 1.00
For recording and indexing a notice of lis pendens 1.50
If such notice contains more than two pages, for each
additional page 1.00
For recording a certificate of real estate claimed as a
homestead 1.00
For administering an oath not herein provided for, and
writing a certificate thereof where the case requires
one 1.00
For recording a writing containing pages in excess of
legal size, 8 ½" X 13", additional fee for each
page, where recording is by photograph .50
For recording and indexing instruments not specifically
provided for herein 1.50
If such instrument contains more than two pages, for each
additional page 1.00
For recording anew any will, deed or other paper, the
same fees herein provided for the original recording.
For any service other than recording and indexing not
specifically provided for, the same fee as a clerk
of the circuit court for similar services.
All acts or parts of acts in conflict herewith are hereby
repealed.
(c) In addition to any other fee established for the issuance
of a marriage license, the county clerk shall collect a sum of
fifteen dollars for each marriage license issued. All moneys collected shall be deposited in a special account in the state
treasury to be known as the "Family Protection Shelters Fund".
Expenditures from the fund shall be dispersed to local family
protection shelters as provided in article two-c of this chapter
and are to be made only in accordance with appropriation by the
Legislature and in accordance with the provisions of article three,
chapter twelve of this code and upon fulfillment of the provisions
of article two, chapter five-a of this code.