MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary, Division A
By: Senator(s) McDaniel
AN ACT ENTITLED THE "MISSISSIPPI MARITAL CONTRACT AT COMMON LAW RECORDING ACT"; TO PROVIDE FOR A "RECORD OF MARITAL CONTRACT AT COMMON LAW" EVIDENCING A MARITAL CONTRACT; TO PROVIDE FOR THE RECORDING OF THE MARITAL CONTRACT WITH THE CIRCUIT CLERK; TO PROVIDE THAT A SECOND MARRIAGE BEFORE DISSOLUTION OR RECISSION OF FIRST MARRIAGE IS PROHIBITED; TO PROVIDE FOR THE CONTEST OF RECORD OF MARITAL CONTRACT AT COMMON LAW; TO PROVIDE FOR THE USE OF RECORD OF MARITAL CONTRACT AT COMMON LAW; TO PROVIDE FOR THE RECORDATION OF MARITAL CONTRACTS AT COMMON LAW WITH THE BUREAU OF VITAL RECORDS; TO AMEND SECTIONS 93-1-1 THROUGH 93-1-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI MARITAL CONTRACT AT COMMON LAW ACT SUPERSEDES EXISTING MISSISSIPPI STATUTES RELATING TO MARRIAGE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act is known and may be cited as the "Mississippi Marital Contract at Common Law Recording Act."
SECTION 2. The Legislature finds that:
(a) The existence of a marital relationship between one (1) man and one (1) woman in this state is not dependent on enacted positive law, and the positive law cannot abolish the existence and creation of such a marital relationship but only regulate the mode by which a man and a woman enter into the marital relationship;
(b) The Ninth Amendment to the United States constitution guarantees to the people of this state the rights held by the people at common law, and the right of a man and a woman to enter into a marital relationship as defined at common law in terms of husband and wife will not be denied or disparaged by a construction of any enumerated rights in the constitution;
(c) The Fourteenth Amendment to the United States constitution did not abrogate the provisions of the ninth amendment or the possession of private rights at common law by the people;
(d) The due process clause of the Fifth and Fourteenth Amendments to the United States constitution guarantees that no person shall be deprived of life, liberty, or property without due process of law;
(e) By virtue of the ninth amendment, the due process clause of the fifth and fourteenth amendments shall not be construed to disparage or deny to the people their rights at common law;
(f) The common law right to liberty is only protected procedurally by the due process and equal protection clauses of the fifth and fourteenth amendments because the right itself was not enumerated and is among the others retained by the people under the ninth amendment;
(g) The powers of the federal judicial branch were not expanded by the provisions of the fourteenth amendment and do not include the creation and enforcement of rights not expressly enumerated in the Constitution or that constrict the powers of the states to secure their common law rights unless the manner in which they do so violates the amendment's privileges and immunities clause or denies persons procedural due process or the equal protection of the law;
(h) Under the United States constitution, no power to regulate the common law marital relationship was delegated to the federal government by the constitution, nor prohibited by it to the states, and, that power was reserved to the states, or to the people by the tenth amendment;
(i) The Mississippi Constitution controls the powers of the Legislature and the executive branch, and so long as its provisions do not contravene the powers delegated expressly or by necessary implication to the federal government by the United States constitution, the provisions of the Mississippi Constitution are binding on the legislative and executive branches and are enforceable;
(j) The Mississippi Constitution recognizes the validity of a marital contract at common law between one (1) man and one (1) woman;
(k) The United States Supreme Court has not held that a state cannot recognize as valid and enforceable a common law marital relationship; and
(l) The United States Supreme Court has stated that it has no constitutional authority to declare what the common law of a state is or should be.
SECTION 3. (1) If one (1) man and one (1) woman have both attained the age of majority and have a marital contract at common law, then the man and the woman shall file with the office of the county clerk in the county in which one (1) of the parties to the marital contract resides a document entitled "Mississippi Record of Marital Contract at Common Law." The document must state:
(a) That the man and woman have declared to each other acceptance of the other as wife and husband, respectively, and affirm the man's and the woman's mutual intention to enter into a marital contract at common law;
(b) The man's and the woman's dates of birth and current address;
(c) The county and, if applicable, the city in which the declaration of marriage and statement of intent to enter into a marital contract at common law was made;
(d) That the marriage is not being contracted with a lineal ancestor or descendant, the lineal ancestor or descendant of either parent the child of a grandparent, the lineal descendants of husband or wife, as the case may be, or the husband or wife of a parent or lineal descendant;
(e) That at the time the declaration of marriage and statement of intent to enter into a marital contract at common law was made, neither the husband nor the wife was drunk or of unsound mind or acting under force or duress;
(f) That the record of marital contract at common law is not being executed prior to the dissolution of any marriage solemnized prior to the effective date of this act; and if the marriage is dissolved based on the party to a previous marriage having been absent five (5) years and not known to be living, the name of the other party to such previous marriage; and
(g) That each party understands that making a false statement in the document is punishable as perjury.
(2) The document must be sworn to by the husband and the wife, with the names of the husband and wife printed below the respective signatures.
(3) Both the husband and wife must be present at the time the record of the marital contract at common law is filed with the circuit clerk, and the husband and wife must each provide the circuit clerk with a form of government-issued photo identification prior to the clerk filing the record of marital contract at common law.
(4) The record of marital contract at common law may be filed at any time after the declaration of marriage and statement of intent has been made.
(5) If either party is incarcerated or otherwise unable to be present in person to provide the information required by subsection (1) of this section the party may submit a record of marital contract at common law that contains:
(a) The information required by subsection (1) of this section;
(b) A copy of the person's government-issued photo identification;
(c) A statement as to the cause or reason for the person's inability to comply with subsection (3) of this section; and
(d) A notarized statement of a witness to the unavailable party's declaration of acceptance of the other party as husband or wife and statement of intent to enter into a marital contract at common law, and contain the witness's full legal name, age, and current address.
(6) Failure to record a record of marital contract at common law is not determinative of whether a marital contract at common law exists. The existence and validity of a marital contract at common law is not dependent upon the act of submitting notice or of the state receiving and recording the notice.
(7) The Department of Health, Bureau of Vital Statistics, shall develop a record of marital contract at common law form consistent with this part. The Department of Health, Bureau of Vital Statistics, shall post the form on its website for use by the general public and shall distribute copies of the form to each circuit clerk's office in this state.
SECTION 4. (1) The circuit clerk is authorized to record a record of marital contract at common law that complies with this act. The circuit clerk shall forward the record of marital contract at common law to the Department of Health, Bureau of Vital Statistics, to be filed and registered with such office.
(2) If a record of marital contract at common law is executed outside of this state, then the marital contract at common law, the parties thereto, the parties' property, and the parties( children have the same status as if the marital contract at common taw was made in this state if one (1) of the parties to the marital contract at common law was, at the time of the declaration of marriage and statement of intent to enter into a marital contract at common law, a resident of this state.
(3) A circuit clerk is prohibited from recording a record of marital contract at common law that does not conform with this act.
(4) A cause of action for civil or criminal liability shall not be brought against a circuit clerk who in good faith complies with this section.
SECTION 5. A party cannot enter into a valid marital contract at common law before the dissolution of a prior marriage recognized under the law of this state. A record of marital contract at common law involving a person previously married in a lawful civil or common law marriage must not be received for recording in the Department of Health, Bureau of Vital Statistics, unless a record of the dissolution of the prior marriage or marital contract at common law has been recorded in the Department of Health, Bureau of Vital Statistics.
SECTION 6. (1) An interested person has the right to contest the recording of a record of marital contract at common law filed after the effective date of this act.
(2) Venue for the petition of contest is proper in the county where the record of marital contract at common law that is the subject of the contest was filed.
(3) The petition must be accompanied by a cost bond in the sum of at least Fifty Dollars ($50.00).
(4) All court costs must be adjudged against the losing party.
SECTION 7. If a court of competent jurisdiction enters a final judgment holding that any statute, benefit} right, or privilege that a party to a marital contract, or the party's heirs, descendants, assigns, or others in privity with the party, would have by virtue of the marital contract, is invalid, unconstitutional or unenforceable, then the invalidity, unconstitutionality or unenforceability of the statute or benefit does not affect any other statute, benefit, right or privilege to which a person may be entitled. The invalidity, unconstitutionality or unenforceability of a statute, benefit, right or privilege pertaining to a marital contract does not impair the validity of the marital contract itself. The benefits, rights, and privileges referred to in this part include, but are not limited to, those relating to and referring to the relationships of husband and wife, paternity, and parent and child exist as they existed at common law.
SECTION 8. (1) For the purposes of any law in which proof of marriage is necessary in order for a husband or wife to register for, claim, or receive a benefits right, or privilege accorded a spouse under a provision of state or federal law or rules, regulations, and executive orders made pursuant to state or federal law, the record of marital contract at common law recorded with the circuit clerk and on record with the Department of Health, Bureau of Vital Statistics, is prima facie evidence of a common law marital contract, and an official, having accepted the record, is not liable to a claim or cause of action if it is later proved that a marital contract did not exist. A record of marital contract at common law is not conclusive proof of a marital contract.
(2) A person who stands in a third-party relationship to one or more of the parties to a marital contract at common law is not required to recognize a common law marital contract for any purpose unless the common law marital contract has been recorded pursuant to this section. Recording of the record of marital contract at common law pursuant to this part is prima facie evidence of a marital contract but does not preclude the third party from bringing an action for a declaration that a common law marital contract does exist.
(3) A third party described in subsection (2) of this section is not liable for damages to the parties to a common law marital contract, or to other third parties in relation to the common law marital contract, if the third party relies on the record of marital contract at common law filed pursuant to this part, absent a showing of bad faith by the third party or proof by a preponderance of the evidence that the third party knew that a lawful marital contract had not been formed.
SECTION 9. (1) A record of marital contract at common law submitted to a circuit clerk in this state must be filed and registered with the Department of Health, Bureau of Vital Statistics, if the record has been completed and submitted to the circuit clerk in accordance with this section.
(2) The circuit clerk where the record of marital contract at common law is presented for recording shall forward to the Department of Health, Bureau of Vital Statistics, on or before the tenth day of each calendar month, all records of marital contract at common law presented to the clerk for recording, filing and registering during the preceding calendar month.
(3) The Department of Health, Bureau of Vital Statistics, upon request by one (1) of the parties to the record of marital contract at common law, shall provide to that party a certified copy of the record, indicating the date the record was recorded, filed and registered.
(4) The Department of Health, Bureau of Vital Statistics, may charge a fee sufficient to cover the administrative costs related to records of marital contracts at common law submitted for recording.
SECTION 10. The circuit clerk shall collect and forward to the Commissioner of Revenue a fee of Twenty Dollars ($20.00) for each record of marital contract at common law filed and each marriage license issued.
SECTION 11. Section 93-1-1, Mississippi Code of 1972, is amended as follows:
93-1-1. (1) The son shall not marry his grandmother, his mother, or his stepmother; the brother his sister; the father his daughter, or his legally adopted daughter, or his granddaughter; the son shall not marry the daughter of his father begotten of his stepmother, or his aunt, being his father's or mother's sister, nor shall the children of brother or sister, or brothers and sisters intermarry being first cousins by blood. The father shall not marry his son's widow; a man shall not marry his wife's daughter, or his wife's daughter's daughter, or his wife's son's daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degrees. All marriages prohibited by this subsection are incestuous and void.
(2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.
(3) Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 12. Section 93-1-3, Mississippi Code of 1972, is amended as follows:
93-1-3. Any attempt to evade Section 93-1-1 by marrying out of this state and returning to it shall be within the prohibitions of said section.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 13. Section 93-1-5, Mississippi Code of 1972, is amended as follows:
93-1-5. (1) Every male who is at least seventeen (17) years old and every female who is at least fifteen (15) years old shall be capable in law of contracting marriage. However, males and females under the age of twenty-one (21) years must furnish the circuit clerk satisfactory evidence of consent to the marriage by the parents or guardians of the parties. It shall be unlawful for the circuit court clerk to issue a marriage license until the following conditions precedent have been complied with:
(a) Application for the license is to be made in writing to the clerk of the circuit court of any county in the State of Mississippi. The application shall be sworn to by both applicants and shall include:
(i) The names, ages and addresses of the parties applying;
(ii) The names and addresses of the parents of the applicants, and, for applicants under the age of twenty-one (21), if no parents, then names and addresses of the guardian or next of kin;
(iii) The signatures of witnesses; and
(iv) Any other data that may be required by law or the State Board of Health.
(b) Proof of age shall be presented to the circuit court clerk in the form of either a birth certificate, baptismal record, armed service discharge, armed service identification card, life insurance policy, insurance certificate, school record, driver's license, tribal identification card or other official document evidencing age. The document substantiating age and date of birth shall be examined by the circuit court clerk before whom application is made, and the circuit court clerk shall retain in his file with the application the document or a certified or photostatic copy of the document.
(c) Applicants under the age of twenty-one (21) must submit affidavits showing the age of both applying parties made by either the father, mother, guardian or next of kin of each of the contracting parties and filed with the clerk of the circuit court along with the application.
(d) If the male applicant is under seventeen (17) years of age or the female is under fifteen (15) years of age, and satisfactory proof is furnished to the judge of any circuit, chancery or county court that sufficient reasons exist and that the parties desire to be married to each other and that the parents or other person in loco parentis of the person or persons so under age consent to the marriage, then the judge of any such court in the county where either of the parties resides may waive the minimum age requirement and by written instrument authorize the clerk of the court to issue the marriage license to the parties if they are otherwise qualified by law. Authorization shall be a part of the confidential files of the clerk of the court, subject to inspection only by written permission of the judge.
(e) In no event shall a license be issued by the circuit court clerk when it appears to the circuit court clerk that the applicants are, or either of them is:
(i) Intoxicated; or
(ii) Suffering from a mental illness or an intellectual disability to the extent that the clerk believes that the person does not understand the nature and consequences of the application for a marriage license.
(2) Any circuit clerk shall be liable under his official bond because of noncompliance with the provisions of this section.
(3) Any circuit court clerk who issues a marriage license without complying with the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than Fifty Dollars ($50.00) and not more than Five Hundred Dollars ($500.00).
(4) Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 14. Section 93-1-9, Mississippi Code of 1972, is amended as follows:
93-1-9. The failure to comply with the provisions of Sections 93-1-5 and 93-1-7 shall not affect the validity of any marriage duly solemnized, followed by cohabitation.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 15. Section 93-1-11, Mississippi Code of 1972, is amended as follows:
93-1-11. (1) It shall be unlawful for any clerk to issue a marriage license between the hours of 6 p.m. and 8 a.m. When a clerk shall issue a license he shall certify on said license the time when it was issued.
(2) Any clerk violating the provisions of this section shall be guilty of a misdemeanor, and shall be fined not more than Five Hundred Dollars ($500.00).
(3) Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 16. Section 93-1-13, Mississippi Code of 1972, is amended as follows:
93-1-13. A marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued. No irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 17. Section 93-1-15, Mississippi Code of 1972, is amended as follows:
93-1-15. (1) No marriage contracted after April 5, 1956, shall be valid unless the contracting parties shall have obtained a marriage license as otherwise required by law, and unless also the marriage, after such license shall have been duly issued therefor, shall have been performed by or before any person, religious society, institution, or organization authorized by Sections 93-1-17 and 93-1-19 to solemnize marriages. Failure in any case to comply with both prerequisites aforesaid, which shall also be construed as mandatory and not merely directory, shall render the purported marriage absolutely void and any children born as a result thereof illegitimate.
(2) Nothing contained in this section shall be construed to affect the validity of any marriage, either ceremonial or common law, contracted prior to April 5, 1956.
(3) Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 18. Section 93-1-17, Mississippi Code of 1972, is amended as follows:
93-1-17. Any minister of the gospel ordained according to the rules of his church or society, in good standing; any Rabbi or other spiritual leader of any other religious body authorized under the rules of such religious body to solemnize rites of matrimony and being in good standing; any judge of the Supreme Court, Court of Appeals, circuit court, chancery court or county court may solemnize the rites of matrimony between any persons anywhere within this state who shall produce a license granted as herein directed. Justice court judges and members of the boards of supervisors may likewise solemnize the rites of matrimony within their respective counties. Any marriages performed by a mayor of a municipality prior to March 14, 1994, are valid provided such marriages satisfy the requirements of Section 93-1-18.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 19. Section 93-1-18, Mississippi Code of 1972, is amended as follows:
93-1-18. Any marriages performed by a mayor of a municipality prior to March 14, 1994, are validated unless they have been invalidated by a court of competent jurisdiction, provided that all other requirements of law have been met and the marriages would have been valid if performed by an official authorized by law to solemnize the rites of matrimony.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 20. Section 93-1-19, Mississippi Code of 1972, is amended as follows:
93-1-19. It shall be lawful for a pastor of any religious society in this state to join together in marriage such persons of the society to whom a marriage license has been issued, according to the rules and customs established by the society. The clerk or keeper of the minutes, proceedings, or other books of the religious society wherein such marriage shall be had and solemnized, shall make a true and faithful register of all marriages solemnized in the society, in a book kept by him or her for that purpose, and return a certificate of the same to the clerk of the circuit court of the county, to be by him or her recorded, under the penalty prescribed in Section 93-1-21.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 21. Section 93-1-23, Mississippi Code of 1972, is amended as follows:
93-1-23. The clerk of the circuit court in each county shall be the legal custodian of the records and papers relating to marriage licenses and certificates of marriage formerly kept by the clerk of the probate court of each county.
Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 22. Section 93-1-25, Mississippi Code of 1972, is amended as follows:
93-1-25. (1) It shall be unlawful for any person to solicit or cause to be solicited within any courthouse, premises or grounds or lots on which the courthouse may be located in any county within the State of Mississippi, for himself or for and on behalf of any minister or other person, the performance of a marriage ceremony.
(2) Any person violating this section shall be guilty of a misdemeanor and shall be punished by a fine not exceeding Twenty-five Dollars ($25.00) for the first conviction, and for any second or subsequent conviction, by a fine not exceeding One Hundred Dollars ($100.00), or by imprisonment in the county jail not exceeding thirty (30) days, or by both such fine and imprisonment.
(3) Marriage licenses and records of marriage contracts at common law under the "Mississippi Marital Contract at Common Law Recording Act" supersede the provisions of this section.
SECTION 23. This act shall take effect and be in force from and after July 1, 2023.