Enlightening Conversation with a Marriage License Bureau
Copied word-for-word as close as possible from the book, “The Art of Passing the Buck, Vol 2”, Appendix J, by Charles Arthur, copyright 2008, footnotes not included.
Author Unknown, Date Unknown
About 15 years ago, my former wife of about 26 years filed for divorce. We had seven children, five daughters and two sons. At the time I prepared a counterclaim to the Petition for Dissolution, her attorney filed in Domestic Relations (DR) court.
Marriage License Implications
I met one afternoon with the head of the Maricopa County Superior Court, Marriage License Bureau, in downtown Phoenix. A young woman, about 25 years old, headed the marriage license bureau. I asked her to explain to me the general and statutory implications of the marriage license. She was cooperative, and called in an assistant, a tall black man who. at the time. wrote a manual for internal departmental use.
Common-Law States
She deferred to him for most technical explanations. He walked me through the details of the marriage license as it works in Arizona. He mentioned marriage licensing is much the same in the other states – but there are differences. Arizona is one of eight western Community Property states. The other states are Common Law states, including Utah, except for Louisiana which is a Napoleonic Code state.
Secular and God
He then explained some of the details of the marriage license. He said, first the “marriage license is a ‘secular’ contract between the parties and the state.” The state is the “principal party” in this secular contract. The husband and wife are “secondary” or “inferior parties.”
The secular contract is a three-way contract between the “state,” as “principal,” and the husband and wife as the other two parties to the Contract.
He said, in the traditional sense a marriage is a covenant between the husband and wife, and God. But in the secular contract with the state, “reference to God” “is a dotted line”, and “NOT” officially considered in the secular contract.
He said, if the husband and wife wish to include God as a party in their marriage. that is a “dotted line” they added “in their own minds.” He repeated, the state’s marriage license is “strictly secular.” He said further, God being a “dotted line” means the state regards any mention of God as “irrelevant,” even “meaningless.”
He said in the traditional religious context, marriage is a covenant between the husband and wife and God with husband and wife joined as one. This “is not” the case in the secular realm of the state’s marriage license contract. The state is the “principal” or “dominant” party. The husband and wife are merely contractually “joined” as business partners, “not” in any religious union. They may even be considered, he said, connected to each other by another “dotted line.”
He drew a picture of a triangle with the state at the top and a solid line extending from the apex, down the left side to the husband, and a separate solid line extending down the right side to the wife. A dotted line between them merely showed they consider themselves to have entered a religious union of some sort that is irrelevant to the state.
The state recognizes these religious overtones of the marriage as a state official or a minister of a religion must solemnize it. Deputized to perform the marriage ceremony, the clergy, or state representative, returns the signed and completed marriage license to the state.
Marriage is a Business Enterprise
The assistant reiterated marriage is “strictly” secular to the state. It is a privileged business enterprise, so various tax advantages and other political privileges attach to the marriage license contract that have “nothing at all” to do with marriage as a religious covenant or bond between God and a man and a woman.
Principles of Community Property
To get more clarity on this subject, read a legal treatise on marriage, Principles of Community Property, by William Defuniak. Community Property law descends from Roman Civil Law through the Spanish Codes, 600 A.D., written by the Spanish juris-consults. In the civil law, the marriage is a for-profit venture or profit-making venture. This is true even though it may never produce a profit. When the wife goes to the local market to buy foodstuffs and other supplies for the marriage household, she restores the stocks of the business. To restate: In civil law, marriage is a business venture. Also, as children come into the marriage household, the business venture has “born fruit.”
Privileges
Now, back to the explanation by the Maricopa County Superior Court, Marriage Bureau’s administrative assistant. He explained every contract must have “consideration.” The state offers consideration in the form of the license itself – the piece of paper, the “Certificate of Marriage.” The other part of consideration by the state is “the privilege to be regulated by statute.”
He added this privilege to be regulated by statute encompasses all related statutes, and all settled court cases. This includes all statutes and regulations in the years following the start of the marriage. He said, “in a way the marriage license contract is a flexible, ever-changing contract as time goes along – even though the husband and wife do not realize that.”
Can it be a true contract if the state fails to make full disclosure of the terms and conditions? A true contract is entered knowingly, intelligently, intentionally, and with informed consent. Otherwise, technically there is no contract.
Contract Inequities
Another way to look at the marriage license contract with the state is a “contract of adhesion.” This is a contract between two disparate, unequal parties. Again, a flawed “contract.” This is also known as a “specific performance” contract because of the privileges, duties and responsibilities that attach.
The consideration of the husband and wife is the fee paid. This is the “implied” agreement to be subject to the state’s statutes, rules, and controls. This includes all court cases relating to marriage law, family law, children, and property. He stressed this contractual consideration by the bride and groom places them in a definite and defined-by-law position “inferior” and subject to the state. Few people realize this.
Children Belong to the State
He also said children born to the marriage are by law “the contract bearing fruit.” This means the children “primarily” belong to the state. It is important for parents to understand two doctrines fixed in the United States during the 1930s. The first is the Doctrine of Parens Patriae. The second is the Doctrine of In Loco Parentis.
Parens Patriae means “the parent of the country” or to be blunt – the state is the undisclosed true parent. Along this line, a 1930s Arizona Supreme Court case states parents have no property rights in their children and have charge of their children during only good behavior at the sufferance of the state. This means that parents may raise their children and keep custody of their children as long as they do not offend the state. If they displease the state, the state can step in and exercise its superior status and take custody and control of its children. The parents are only conditional caretakers, thus the Doctrine of In Loco Parentis.
Ownership
He also added a few more technical details. “The marriage license is a continuing contract with the state. Technically, the marriage license is a business license allowing the husband and wife, in the name of the marriage, to enter contracts with third parties and contract mortgages and debts.” They get car loans, home mortgages, and installment debts in the name of the marriage because it is not only a secular enterprise, but a privileged business enterprise as well as a for-profit business enterprise. The marriage contract gets property throughout its existence and over time. The hope is the property increases in value.
Children
Also. the marriage contract “bears fruit” by adding children. If sometime later, the marriage fails, and a “divorce” results, the contract continues.
The “divorce” is merely a contractual dissolution or amendment of the terms and conditions of the contract. Jurisdiction of the state over the marriage, over the husband and wife, now separated, continues and continues over all areas of the marriage, over marital property and children bought into the marriage. That is why family law and the Domestic Relations court calls “divorce” a dissolution of the marriage because the contract continues in operation but in amended or adapted form. He also pointed out the marriage license contract is “one of the strongest, most binding contractual relationships” the state has on people.
The Heat of the Moment
At the end of our hour-long meeting, I humorously asked if other people asked the questions I did? The assistant replied that in the several years he worked there, he was not aware of anyone else asking these questions. He added he was glad to see someone interested in the legal implications of the marriage license and the contractual relationship it creates with the state. His boss, the young Marriage Bureau department head, stated, “You have to understand that people who come in here to get a marriage license are in heat. Their last interest is technical, legal, and statutory implications of the marriage license.”
Civil War
I hope this is helpful information to anyone interested in getting more familiar with the contractual implications of the marriage license. The marriage license, as we know it, did not come into existence until after the Civil War and did not become standard practice in all the states until after 1900, becoming firmly set up by 1920. In effect, the states or governments seized or took over control of marriages in secular form and in the process declared Common Law applicable to marriages “abrogated.”