Enlightening Conversation with a Marriage License Bureau. . . .
About 15 years ago, my former wife of 26½ years, filed for divorce. We had
seven (7) children: five (5) daughters and two (2) sons. Our youngest at the
time, our second son, was five years old. At the time, I prepared a
counterclaim to the Petition for Dissolution her attorney filed in Domestic
Relations (DR) court.
I met one afternoon with the head of the MaricopaCounty Superior
Court, Marriage License Bureau, in downtown Phoenix.
The marriage license bureau was headed by a young woman of about age 25. I
asked her to explain to me the general and statutory implications of the
marriage license. She was very cooperative, and called in an Assistant, a tall
Black man who at the time was working on an Operations Manual for internal
She deferred for most technical explanations to her Assistant. He walked
through the technicalities of the marriage license as it operates in Arizona.
He mentioned that marriage licensing is pretty much the same in the other
states -- but there are differences. One significant difference he mentioned
was that Arizona is
one of eight western states that are Community Property states. The other
states are Common Law states, including Utah,
with the exception of Louisiana
which is a Napoleonic Code state.
He then explained some of the technicalities of the marriage license. He said,
first of all, the marriage license is Secular Contract between the parties and
the State. The State is the principal party in that 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 legs of 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 included in the Secular
Contract at all.
He said, if the husband and wife wish to include God as a party in their marriage, that is a "dotted line" they will have
to add in their own minds. The state's marriage license is "strictly
secular," he said. He said further, that what he meant by the relationship
to God being a "dotted line" meant that the State regards any mention
of God as irrelevant, even meaningless.
In his description of the marriage license contract, the related one other
"dotted line." He said in the traditional religious context, marriage
was 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."
The picture he was trying to "paint" was that of a triangle with the
State at the top and a solid line extending from the apex, the State, down the
left side to the husband, and a separate solid line extending down the right
side to the wife, a "dotted line" merely showing that they consider
themselves to have entered into a religious union of some sort that is
irrelevant to the State.
HUSBAND WIFE .
(secondary party) (secondary
He further mentioned that this "religious overtone" is recognized by
the State by requiring that the marriage must be solemnized either by a state
official or by a minister of religion that has been "deputized" by
the State to perform the marriage ceremony and make a return of the signed and
executed marriage license to the State.
Again, he emphasized that marriage is a strictly secular relationship so far as
the State is concerned and because it is looked upon as a "privileged
business enterprise" various tax advantages and other political privileges
have become attached 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
By way of reference, if you would like to read a legal treatise on marriage,
one of the best is "Principles of Community Property," by William Defuniak. At the outset, he explains that 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 considered to be a for-profit venture or
profit-making venture (even though it may never actually produce a profit in operation)
and as the wife goes out to the local market to purchase food stuffs and other
supplies for the marriage household, she is replenishing the stocks of the
business. To restate: In the civil law, the marriage is considered to be a
business venture, that is, a for-profit business venture. Moreover, as children
come into the marriage household, the business venture is considered to have
Now, back to the explanation by the MaricopaCounty Superior Court, Marriage Bureau's administrative Assistant.
He went on to explain that every contract must have consideration. The State
offers consideration in the form of the actual 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 that
this privilege to be regulated by statute includes all related statutes, and all court cases as they are ruled on by the
courts, and all statutes and regulations into the future in the years following
the commencement of the
marriage. He said in a way the marriage license contract is a dynamic or
flexible, ever-changing contract as time goes along - even though the husband
and wife didn't realize that.
My thought on this is can it really be considered a true contract as one
becomes aware of the failure by the State to make full disclosure of the terms
and conditions. A contract must be entered into knowingly, intelligently,
intentionally, and with fully informed consent. Otherwise, technically there is
Another way to look as the marriage license contract with the State is as a
contract of adhesion, a contract between two disparate, unequal parties. Again, a flawed "contract." Such a contract with
the State is said to be a "specific performance" contract as to the
privileges, duties and responsibilities that attach.
Consideration on the part of the husband and wife is the actual fee paid and
the implied agreement to be subject to the state's statutes, rules, and
regulations and all court cases ruled on related to marriage law, family law,
children, and property. He emphasized that this contractual consideration by
the bride and groom places them in a definite and defined-by-law position
inferior and subject to the State. He commented that very few people realize
He also said that it is very important to understand that children born to the
marriage are considered by law as "the contract bearing fruit" -
meaning the children primarily belong to the State, even though the law never
comes out and says so in so many words.
In this regard, children born to the contract regarded as "the contract
bearing fruit," he said it is vitally important for parents to understand
two doctrines that became established in the United
States during the 1930s. The first is
the Doctrine of ParensPatriae.
The second is the Doctrine of In Loco Parentis.
literally "the parent of the country" or to state it more bluntly -
the State is the undisclosed true parent. Along this line, a 1930s Arizona
Supreme Court case states that parents have no property right in their
children, and have custody of their children during good behavior at the
sufferance of the State. This means that parents may raise their children and
maintain custody of their children as long as they don't offend the State, but
if they in some manner displease the State, the State can step in at any time
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.]
He also added a few more technical details. The marriage license is an ongoing
contractual relationship with the State. Technically, the marriage license is a
business license allowing the husband and wife, in the name of the marriage, to
enter into contracts with third parties and contract mortgages and debts. They
can get car loans, home mortgages, and installment debts in the name of the
marriage because it is not only a secular enterprise, but it is looked upon by
the State as a privileged business enterprise as well as a for-profit business
enterprise. The marriage contract acquires property through out its existence
and over time, it is hoped, increases in value.
Also, the marriage contract "bears fruit" by adding children. If
sometime later, the marriage fails, and a "divorce" results the
contract continues in existence. 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 aspects
of the marriage, over marital property and over children brought into the
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 modified form. He
also pointed out that the marriage license contract is one of the strongest,
most binding contractual relationships the State has on people.
At the end of our hour-long meeting, I somewhat humorously asked if other
people had come in and asked the questions I was asking?
The Assistant replied that in the several years he had worked there, he was not
aware of anyone else asking these questions. He added that he was very 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 woman Marriage Bureau department head stated, "You
have to understand that people who come in here to get a marriage license are
in heat. The last thing they want to know is technical, legal and statutory
implications of the marriage license."
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 didn't come into existence until after the Civil
War and didn't become standard practice in all the states until after 1900,
becoming firmly established by 1920. In effect, the states or governments
appropriated or usurped control of marriages in secular form and in the process
declared Common Law applicable to marriages "abrogated."
Please pass this information along and share it as widely as possible.