NYCL AGO 2004-1.

Case DateMarch 03, 2004
CourtNew York
New York Attorney General Opinions 2004. AGO 2004-1. March 3, 2004Informal Opinion No. 2004-1Darrin B. Derosia Corporation Counsel City of Cohoes City Hall 97 Mohawk Street Cohoes, New York 12047-2897Peter Case Graham Town Attorney Town of Olive 479 Washington Avenue Kingston, New York 12401C.P.L.R. § 4502; CIVIL RIGHTS LAW § 40-c(2); DOMESTIC RELATIONS LAW ART. 2, 3, 9, 10-12, §§ 5, 6, 7, 8, 10, 11, 11-a, 12, 13, 14, 15, 15-a, 16, 17, 22, 23, 25, 140, 170, 200, 221, 236, 248; EDUCATION LAW § 313; ESTATES, POWERS and TRUSTS LAW, §§ 4-4.1, 5-1.1; EXECUTIVE LAW § 296; INSURANCE LAW §§ 240.30, 485.05, 2701; PENAL LAW ART. 210, §§ 240.30, 255.00, 485.05; 9 N.Y.C.R.R. § 2204.6; 18 N.Y.C.R.R. § 421.16; L. 1907, CH. 742; L. 1896, CH. 272; ALASKA CONSTITUTION ART. I, § 25; VERMONT STAT. ANN. TIT. 15 §§ 1201 et seq.The language of the New York State Domestic Relations Law indicates that the Legislature did not intend to authorize same-sex marriages.Dear Mr. Derosia and Mr. Graham: You each have written to our office regarding the issue of same-sex marriages. In particular, the Town of Olive has asked whether the Town Clerk may "issue a marriage license to two persons who claim to be of the same sex." The City of Cohoes has asked whether "there [are] any circumstances under which same sex marriage would be valid in New York State, and if so, what are those circumstances?" During the past several weeks, our office has also received related inquiries from other elected officials. In view of the significant public interest in this matter, we have expedited our review and are issuing this opinion to address certain legal questions regarding the scope and meaning of the New York Domestic Relations Law ("DRL"). The Attorney General's Office traditionally does not issue opinions on the constitutionality of state laws, and we do not today opine on whether the federal or state constitutions require the State to permit same-sex marriage. New York courts have not yet ruled on this issue, and they are the proper forum for resolution of this matter. However, because these constitutional concerns are integral to the questions you raise, we outline them here to assist you in advising the local officials you represent. A. Overview of the Domestic Relations Law The Domestic Relations Law provides the statutory framework for marriage, including identifying those marriages deemed void and voidable (Article 2); setting forth the requirements for solemnization, issuance of marriage licenses, and proof of eligibility for marriage (Article 3); and providing for annulment and voidability of marriages (Article 9), and for divorce, separation, and dissolution on grounds of absence (Articles 1012). 1. Formal Requirements for Marriage a. Qualifications for Marriage The DRL sets forth only two qualifications for marriage: (1) a minimum age requirement, see DRL § 15-a; and (2) "the consent of parties capable in law of making a contract," id. § 10. Article 2 defines those relationships that constitute "void" or "voidable" marriages. Specifically, incestuous and bigamous marriages are void. See id. §§ 5, 6. That is, such unions are void from their inception, and no judgment or other judicial action is required to make it so. See McCullen v. McCullen, 162 A.D. 599, 601 (1st Dep't 1914). Certain other marriages are "voidable," i.e., void only if so "declared by a court of competent jurisdiction." DRL § 7. Voidable marriages include those in which either party is under eighteen years old, see id. § 7(1); cannot consent to the marriage "for want of understanding," id. § 7(2); cannot enter "into the married state from physical cause," id. § 7(3); consents to the marriage "by reason of force, duress or fraud," id. § 7(4); or has been "incurably mentally ill for a period of five years or more," id. § 7(5). b. Licensure and Solemnization Article 3 sets forth the formal requirements for marriage, which include licensure and solemnization. The DRL requires that "all persons intended to be married in New York state . . . obtain a marriage license from a town or city clerk," and deliver the license within sixty days "to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed." DRL § 13. In the case of a marriage by written contract, the license must be delivered to the judge "before whom the acknowledgment is to be taken." Id. Town or city clerks are "empowered to issue marriage licenses to any parties applying for the same who may be entitled under the laws of this state to apply therefor and to contract matrimony." Id. § 14. In order to be valid, a marriage must be solemnized by an individual who falls within one of the categories enumerated in the statute. Persons who may solemnize marriages include ministers, clergy, mayors, county executives, and federal and state judges. Seeid. § 11. Persons who solemnize a marriage in the absence of a marriage license or with knowledge that either party is legally incompetent to contract marriage may be subject to prosecution for a misdemeanor, as may a clerk who issues or files a marriage license improperly. See DRL § 17 (misdemeanor to solemnize marriage where parties have not presented license or with knowledge that either party is legally incompetent to contract matrimony); id. § 22 (misdemeanor for city or town clerk to violate DRL art. 3); Penal Law § 255.00 (misdemeanor to solemnize marriage without statutory authorization, or, if authorized to do so, to perform a marriage knowing that a legal impediment to the marriage exists).(fn1) The DRL does not, however, penalize individuals who participate in a marriage ceremony without first obtaining a license. But see DRL § 16 (providing that any person who "wilfully and falsely" swears in regard to "any material fact as to the competency of any person for whose marriage the license in question or concerning the procuring or issuing of which such affidavit or statement may be made shall be deemed guilty of perjury"); see also Penal Law art. 210 (perjury). Nor does the lack of a marriage license affect the validity of a marriage. See DRL § 25 ("Nothing in this article contained shall be construed to render void by reason of failure to procure a marriage license any marriage solemnized between persons of full age."); see also Persad v. Balram, 187 Misc. 2d 711, 714 (Sup. Ct. Queens County 2001); Berenson v. Berenson, 198 Misc. 398 (Fam. Ct. N.Y. County 1950); Heller v. Heller, 188 Misc. 608 (Sup. Ct., Special Term, N.Y. County 1947); In re Estate of Levy, 168 Misc. 864 (Sur. Ct. N.Y. County 1938). 2. Annulment and Divorce Section 140 of the DRL provides for judgments declaring the nullity of void marriages, and for judgments annulling voidable marriages. An action to declare the nullity of a void marriage, while not necessary to terminate the marriage, is often brought to provide the parties with certainty about its status. See Alan D. Scheinkman, Practice Commentaries to DRL § 140, 14 McKinney's Cons. Laws of N.Y. at 332 (1999). A bigamous marriage, which is void pursuant to section 6 of the DRL, may be declared null in an action maintained by either party to the marriage or "by the former husband or wife." DRL § 140(a). Actions to annul one of the voidable marriages enumerated in section 7 of the DRL may be brought by one of the parties to the marriage, or in some instances by a parent, guardian, or relative of a party to the marriage, see id. § 140(b)-(d), and actions for divorce or separation may be brought "by a husband or wife," id. §§ 170, 200. B. Application of Statutory Provisions to Same Sex Couples We can provide no certain guidance as to how New York courts will ultimately rule with respect to whether New York law permits or prohibits marriage by same-sex couples. Although the DRL does not explicitly prohibit same-sex marriages, it is our view that the Legislature did not intend to authorize same-sex marriage. The exclusion of same-sex couples from eligibility for marriage, however, presents serious constitutional concerns, which we outline below. We...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT