May 27, 2009

About 15 years ago, my former wife of 26  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 Maricopa County 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 departmental use.

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.

   Marriage License

   Secular Contract Diagram

STATE

(primary party)

HUSBAND                  WIFE   .

(secondary party) (secondary party) .

GOD

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 woman.

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 "borne fruit."

Now, back to the explanation by the Maricopa County 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 no contract.

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 this.

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 Parens Patriae.  The

second is the Doctrine of /In Loco Parentis/.

Parens Patriae means 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 Parenti/s.]

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 marriage.

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."

PDF DOCUMENT HERE:

http://www.newmexicocommonlawvenue.org/pub_doc/Marriage_Licenses.pdf

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