Honorable Don Davis
AGO 2019-47
No. 2019-047
Alabama Attorney General Opinion
State of Alabama Office of the Attorney General
August 28, 2019
Honorable
Don Davis
Mobile
County Probate Judge
Post
Office Drawer Seven
Mobile,
Alabama 36601
Probate
Judges - Marriages - Recordation of Instruments -
Identification Cards -Uniform Electronic Transactions Act
Discussion
of how probate judges should administer Act 2019-340 which
changes the legal requirements for marriage.
Dear
Judge Davis:
This
opinion of the Attorney General is issued in response to your
request.
QUESTIONS
(1) Do
the marriage affidavits, forms, and data specified in section
30-1-5 of the Code of Alabama and section 2 of Act 2019-340
(collectively, "Documents") need to be delivered in
person to the probate court or can they be submitted by mail
or electronically?
(2) If
the Documents must be delivered in person, must both parties
to the marriage relationship deliver the documents together?
(3) If
electronic transmittal of the Documents is permitted, must
the parties submit proof of identification with the
Documents?
(4)
Must parents/guardians providing consent for a person over 16
and under 18 years of age to marry appear in person as well
with the minors?
(5) If
parental/guardian consent is needed, must proof be submitted
as to the parental or guardianship relation to the minor?
(6)
Does the signature of the parent or guardian granting consent
have to be dated the same date as the minor's signature?
(7)
Must each party declare his or her country of citizenship in
the Documents?
(8)
Must the parties be physically present in the state at the
time of the execution of the Documents?
(9) If
not, may any United States citizen marry a person he or she
has never met who resides in another country?
(10)
May two citizens of a foreign country submit Documents by
mail and be considered married under Alabama law, without
ever being physically present in the state?
(11) If
the thirtieth day following the execution of the Documents is
during a weekend or on a holiday, does the thirty-day
deadline extend to the following business day?
(12)
When does the thirty-day period for recording the Documents
in court commence when the parties execute the Documents on
different dates?
(13)
May court staff reject Documents that do not contain all of
the information required by the act or that are not submitted
within thirty days of execution?
(14)
Should the court accept handwritten Documents and, if so,
should staff reject illegible documents?
(15)
Pursuant to section 22-9A-6 of the Code of Alabama, may the
court or the State Board of Health require information and
documentation not expressly required under section 2(b) of
the act?
(16) If
"original documentation" in section 30-1-12 of the
Code of Alabama and "copy of the form" in section
2(e) of the act are the same form, then should the probate
judge send the "original" or a "copy" to
the Office of Vital Statistics? If the original is to be
sent, does the person presenting the documentation for
recording receive only a copy and should it be certified? If
a copy is to be sent, does the person presenting the
documentation for recording receive the original?
(17) If
a court has a policy prohibiting clerks from administering
notary acknowledgments on any documents filed in their
office, does the act require clerks who are notaries public
to administer a notary acknowledgment in regards to an
"affidavit" required by the act?
FACTS
AND ANALYSIS
Act
2019-340 fundamentally changes the process in which couples
are married in the State of Alabama, abolishing the old
requirements that a couple obtain a marriage license from a
probate judge and participate in a solemnization ceremony.
Ala. Acts No. 2019-340. The act repealed sections 30-1-9,
30-1-10, 30-1-11, 30-1-13, and 30-1-14 of the Code of
Alabama, amended sections 22-9A-17, 30-1-5, 30-1-12, and
30-1-16, and added section 30-1-21. Under the act, the old
requirements are replaced with the recordation of a
"marriage document" in probate court. Ala. Code
§ 30-1-21 (West law 2019). Your request presents
numerous concerns affecting probate judges who are charged
with administering the new marriage law.
The
requirements for marriage before the effective date of the
act were set out in section 30-1-9 as follows:
No marriage shall be solemnized without a license.
Marriage licenses may be issued by the judges of probate of
the several counties. The license is an authority to anyone
qualified to solemnize marriage to join together in matrimony
the persons therein named. Any license issued under the
provisions of this section shall be invalid if the marriage
for which it was issued has not been solemnized within 30
days from the date of issuance. No person now or
hereafter authorized by law to solemnize marriages shall
perform any ceremony or solemnize any marriage if the license
issued for such marriage has become invalid. The license
shall have stamped or printed upon it the words: "This
license is void after 30 days from date unless the marriage
is solemnized within said time."
Ala. Code § 30-1-9 (2016) (emphasis added).
According
to section 2(g) of the act, however, "[a]ll requirements
to obtain a marriage license by the State of Alabama are
hereby abolished and repealed. The requirement of a ceremony
of marriage to solemnize the marriage is abolished."
Ala. Code § 30-l-21(g) (West law 2019). Furthermore,
section 2(a) underscores that all previous requirements to
obtain a marriage are being abolished, stating that,
"[o]n the effective date of this act and thereafter,
the only requirement for a marriage in this state
shall be for parties who are otherwise legally authorized to
be married to enter into a marriage as provided in this
section." Ala. Code § 30-1-21(a) (West law 2019)
(emphasis added).
The act
rewrote...