MARRIAGE AND CIVIL LAW

by Fr. Alvian Smirensky

Spring/Summer 1998

The rules for the formation of marriage found in Roman law have never been improved upon and form the basis for marriage as understood by the Church:

   Marriage is the union of a man and a woman, a 
   partnership for life, involving divine as well as human 
   law. (Modestinus, Rules, book 1; in Justinian Digest,
   23, 2, 1).

   Marriage cannot take place unless everyone involved   
   consents, that is, those who are being united, and 
   those in whose power they are. (Paul, Edict, book 
   35; in Justinian Digest, 23, 2, 2).

   Most priests and laypeople have no difficulty in dealing with the civil requirements for a first marriage. Everyone knows that a marriage does not take place without a license.

   According to the laws of New York and New Jersey marriage is looked upon as an institution which involves important societal interests and the laws prescribe certain qualifications and prerequisites for a valid marriage. Marriages performed in violation of these requirements are void. For example, both States prohibit marriages between "close relatives",  but marriages between first cousins and between a great-granddaughter and a grandson having a common ancestor are allowed. While some States permit the marriage between uncle and niece, and this was allowed in Imperial Russia with the consent of the Holy Synod, such a marriage is not allowed in New York.

   Pastors must be careful in complying both with civil law and with the rules of the Church, always applying the stricter of the two. For example, pastors should be cautious in performing marriages which may be for purposes of obtaining legal residence in the United States to make certain that no possibility of fraud exists which would make such a marriage void under civil law.

   Since the State looks upon marriage as a civil contract, the consent of parties legally capable of entering into contracts is essential. While no particular form of solemnization is required or mandated by the State, the parties must solemnly declare in the presence of the officiating person and at least one witness that they take each other as husband and wife. While the practice of giving verbal consent is sometimes missing from the rites of the Greek Church, it is still given in the present-day Euchologian of the Church of Greece, but is not actually done. Russian liturgical practice retains the earlier tradition and places the mutual consent at the beginning of the Service of Crowning.

   A caution is in order here for "liturgical purists" who would improperly omit the questions on the basis of current Greek practice. On the other hand this does not justify the insertion of "vows" into the marriage rite, since they have no place in Orthodox tradition and are a carry-over from Uniat practice.

   Difficulties may arise however, when a priest is asked to "bless" a marriage which has taken place outside the Church. This can occur in situations when a non-Orthodox couple is received into the Orthodox Church or in the event that a couple, one or both of whom are baptized Orthodox, who were married in a civil ceremony or in another Church, ask that their marriage receive the blessing of the Orthodox Church. A third case involves a couple which has lived together for some time as man and wife without the benefit of any marriage ceremony.

   The civil statutes discussed here are those in effect in the states of New York and New Jersey. The encyclical on Marriage as well as instructions from the local Diocesan Bishop must be the governing standard in all cases.

   In the first instance when a heterodox married couple is received into the Orthodox Church they are not to be remarried.

   In the second instance, situations arise when persons from Russia and Eastern Europe who were married in a civil ceremony wish to have their marriage receive the blessing of the Church. It should be noted that although the Orthodox Church looks upon a civil marriage as one deprived of Sacramental grace it nonetheless is a marriage and is not to be considered concubinage as presently understood. However, the laws governing civil marriage may be at variance with the rules of the Church and not every civil marriage can be blessed and receive a Sacramental character. This would for example, include any marriage beyond three, a marriage between close relatives (as noted above, New York and New Jersey, along with most states, permit first cousin marriages), and a marriage where one or both of the couple is not baptized.

   Neither the Church nor the two states recognize "common-law" marriages. Occasionally it happens that communicant members of the parish, or an Orthodox couple wishing to join the parish may have been married outside the Church. Each such case must be objectively assessed and be resolved appropriately in consultation with the bishop.

   Once a determination is made to bless the marriage, THE RITE OF BLESSING OF SPOUSES WHO HAVE BEEN LIVING WITHOUT THE BLESSING OF THE CHURCH should be followed. This is a translation of a Service found in the 1873 L'vov Trebnik and is reprinted in the 1983 Manual for Clerics of the Moscow Patriarchate (Vol. 4, pg 309) and is available from the Diocesan office.

   Before any such step is taken the couple and the pastor must comply with the civil law.

 In New York:

   A clergyman or other person authorized to solemnize marriages may solemnize a marriage when a duly issued license is presented and the officiating person has no personal knowledge of any incapacity of either party to contract marriage. (Domestic Relation Law, Sect. 18)

   However, clergy or other persons authorized to solemnize marriages, may not solemnize or presume to solemnize any marriage without a license being presented or with knowledge of the legal incapacity of either party. (DRL, Sect. 17).   The violation of the above is a misdemeanor, subject to fine or imprisonment.

   The Domestic Relations Law requires that if a couple which has been legally married desire to have a second or subsequent religious marriage ceremony they must apply for a special marriage license. (1977 Opinion of the Attorney General (Inf.) 288).

   Similar rules are in effect in New Jersey which likewise require a marriage license before any marriage can be solemnized:  Nothing in this section shall be construed to prevent the remarriage of a couple already married to each other; provided a new license is obtained and the marriage properly reported. Such license shall be plainly marked "Issued for re-marriage -- originally married to same mate..."(P.L. 1938, c. 126).

   The Opinion of the Attorney General in New York was issued in response to an inquiry from a Roman Catholic bishop who asked whether a license is required to "bless" an out-of-Church marriage. The New Jersey Statute clearly spells out the need for such a license for any subsequent religious solemnization.

   There can be no question that both New York and New Jersey require a couple to obtain a special marriage license before the Rite of Blessing can take place. (In New Jersey, "Duplicate licenses may be obtained when parties desire both civil and religious ceremonies." {Tit. 37, c. 1, #26})

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"By loving each other the spouses loves God.  Every moment of their life rises up like a royal doxology, like an unending liturgical chant.  St. John Chrysostom brings forward this magnificent conclusion:  'Marriage is a mysterious icon of the Church.'"

Paul Evdokimov in The Sacrament of Love (p. 123)

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[Fr. Alvian Smirensky is Rector Emeritus of St. Nicholas Church, Cohoes, NY.]

 

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