Davis, 082819 ALAGO, AGO 2019-47

Case DateAugust 28, 2019
CourtAlabama
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...

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