H. B. 2731
(By Delegates Staton, Hines, Capito,
Johnson, Faircloth, Linch and Hunt)

(Originating in the Committee on the Judiciary)

[February 10, 1999]

A BILL to repeal sections six-a, six-b, six-c and six-d, article one, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section six of said article; and to further amend said article by adding thereto three new sections, designated sections seven, eight and eight-a, all relating to applications for a marriage license; eliminating requirements for a blood test; establishing a three-day waiting period before a license may issue if either or both applicants is under eighteen years of age; providing for a circuit judge to dispense with or shorten the waiting period in case of emergency or extraordinary circumstances; setting forth the contents of an application for a marriage license; providing for execution and recordation of the marriage license; requiring proof of age by applicants; and prohibiting certain unlawful acts by the clerk of the county commission, defining misdemeanor offenses and establishing penalties.

Be it enacted by the Legislature of West Virginia:
That sections six-a, six-b, six-c and six-d, article one, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section six of said article be amended and reenacted; and that said article be further amended by adding thereto three new sections, designated sections seven, eight and eight-a, all to read as follows:
ARTICLE 1. MARRIAGE.

§48-1-6. Waiting period before issuance of marriage license; issuance of license in case of emergency or extraordinary circumstances.

Every license for marriage shall be issued by the clerk of the county commission of the county in which either party usually resides, except that where both parties are nonresidents of the state of West Virginia, the license shall be issued by the clerk of the county commission of the county in which application is made. The license shall be issued not sooner than three days after the filing with the clerk of a written application therefor. The day on which the application is filed shall be counted as the first day, but two full days shall elapse after the day of filing before the license shall be issued. Before any license is issued, each applicant shall file with the clerk a certificate or certificates from any physician duly licensed in the state, stating that each party has been given an examination, including a standard serological test, as may be necessary for the discovery of syphilis, made not more than thirty days prior to the date on which license is issued, and stating that in the opinion of the physician the applicant either is not infected with syphilis or, if so infected, is not in the state of the disease which is or may later become communicable. The examinations and tests required by this section may be given as provided by section nineteen, article four, chapter sixteen of this code.
The application for a marriage license shall contain a statement of the full names of both parties, their social security account numbers, their respective ages and their places of birth and residence. Effective the first day of September, one thousand nine hundred ninety-three, the application for a marriage license shall also 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, as well as other provisions of the criminal laws of this state, are applicable to spouses and other family members and violations thereof are punishable by law."
It shall be signed by both of the parties to the contemplated marriage, under oath before the clerk of the county commission or before a person authorized to administer oaths under the laws of this state. At the time of the execution of the application, the clerk, or the person administering the oath to the applicants, shall require some evidence of the age of each of the applicants. Evidence of the age of each applicant may be in the form of a certified or photostatic copy of a birth certificate, a voter's registration certificate, an operator's or chauffeur's license, an affidavit of both parents or legal guardian of the applicant or other good and sufficient evidence. Where such an affidavit is relied upon as evidence of the age of an applicant, and one parent is dead, the affidavit of the surviving parent or of the guardian of the applicant shall suffice; if both parents are dead, the affidavit of the guardian of the applicant shall suffice. If the parents of the applicant are living separate and apart, the affidavit of the parent having custody of the applicant shall suffice. The application shall be recorded in the register of marriages provided for in section eleven 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.
~~To the extent otherwise provided by section six-c of this article, the provisions of this section do not apply.~~
(a) Except as otherwise provided in subsection (b) of this section, if either or both of the applicants for a marriage license is under eighteen years of age, 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 will be filed may order the clerk of the county commission to issue a license at any time before the expiration of the waiting period prescribed in subsection (a). 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 will 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.
(c) Applications for licenses may be received and licenses may be issued by the clerk of the county commission at anytime his or her office is officially open for the conduct of business.

§48-1-7. Contents of application for marriage license; execution of application; recordation of application.

(a) The application for a marriage license must 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 must 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."
(c) 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.
(d) The clerk shall record the application for a marriage license in the register of marriages provided for in section eleven of this article. The date of the filing of the application must be noted in the register. The notation, or a certified copy thereof, is legal evidence of the facts therein contained.
§48-1-8. 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.

§48-1-8a. 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 six 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.
(b) A clerk of the county commission who otherwise 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.