Duty of Town and City Clerks

The first step in getting married in New York is to apply for a marriage license. It is the responsibility of town and city clerks to ensure that proper procedures are followed. In an effort to ensure that applicants provide accurate and complete information, and to ensure that they are competent to marry, the application must require that applicants provide specific information. If the clerk fails to do so and inaccurate or incomplete information is provided, there is a greater possibility that void or voidable marriages will take place. Whether you are planning to get married or you are considering getting a divorce, and you are facing a complex family-related legal issue, the New York family lawyers at the Law Offices of Stephen Bilkis & Associates can help. With over 20 years of experience, we have the skill and knowledge to help you achieve the outcome you desire for your family law matter.

With respect to marriages, it is the role of the town and city clerks to ensure that marriage applications are properly completed. The application must require that each of the applicants provide the following information: name, place of residence, social security number, age, occupation, place of birth, father’s name, country of birth, mother’s maiden name, country of birth, and number of marriage. In addition, each person must also present proof of age by showing a birth certificate, driver’s license, passport, life insurance policy, immigration record, or government or school issued ID.

The application must inquire as to whether either person has been previously married, whether the former spouse is alive, and whether the either party is divorced. If divorced, the party must provide details of the divorce, and may be required to show proof of divorce.

The purpose of these requirements is to ensure that there is no legal impediment to the couple marrying. For example, if one party is still married, then any attempt to get remarried would be void. This is why the clerk may require proof of a divorce decree. If the clerk is confident that the couple is competent to marry, he or she will issue a marriage license. If one or both of the parties is under the age of 18, but over the age of 17, then parent is required before the clerk can issue a marriage license.

The couple can choose the surname or surnames that they will use after the marriage. Either can choose the surname of the other spouse or a former surname of either spouse. They can also choose a name combining the premarriage surnames, or they can choose a hyphenated surname.

1. Marriage licenses: New York Domestic Relations Law, section 13
2. Duty of clerk issuing marriage license: New York Domestic Relations Law, section 13-d
3. Town and city clerks to issue marriage licenses; form: New York Domestic Relations Law, section 14
4. Town and city clerks to issue certificates of marriage registration; form: New York Domestic Relations Law, section 14-a

1. (a) It shall be the duty of the town or city clerk when an application for a marriage license is made to him or her to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his or her deputies, containing the following information. From party one: Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage. From party two: Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage. Both parties shall also be required to present to the clerk documentary proof of age in the form of an original or certified copy of a birth record, a certification of birth issued by the state department of health, a local registrar of vital statistics or other public officer charged with similar duties by the laws of any other state, territory or country, a baptismal record, a passport, an automobile driver's license, any government or school issued identification card that contains a photograph of the applicant, a life insurance policy, an employment certificate, a school record, an immigration record, a naturalization record, a court record or any other document or record issued by a governmental entity, showing the date of birth of such parties. The said clerk shall also embody in the statement if either or both of the applicants have been previously married, a statement as to whether the former spouse or spouses of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so, when and where and against whom the divorce or divorces were granted and shall also embody therein a statement that no legal impediment exists as to the right of each of the applicants to enter into the marriage state. The town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce witnesses to identify them or either of them and may examine under oath or otherwise other witnesses as to any material inquiry pertaining to the issuing of the license, and if the applicant is a divorced person the clerk may also require the production of a certified copy of the decree of the divorce, or proof of an existing marriage of parties who apply for a license to be used for a second or subsequent ceremony; provided, however, that in cities or towns the verified statements and affidavits may be made before any regular clerk or designee of the clerk's office.

(b) Every application for a marriage license shall contain a statement to the following effect:

NOTICE TO APPLICANTS

(1) Every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud.

(2) A person's last name (surname) does not automatically change upon marriage, and neither party to the marriage must change his or her last name. Parties to a marriage need not have the same last name.

(3) One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the solemnization of the marriage by entering the new name in the space below. Such entry shall consist of one of the following surnames:

(i) the surname of the other spouse; or

(ii) any former surname of either spouse; or

(iii) a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse; or

(iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses.

(4) The use of this option will have the effect of providing a record of the change of name. The marriage certificate, containing the new name, if any, constitutes proof that the use of the new name, or the retention of the former name, is lawful.

(5) Neither the use of, nor the failure to use, this option of selecting a new surname by means of this application abrogates the right of each person to adopt a different name through usage at some future date.

2. If it appears from the affidavits and statements so taken, and from the documentary proof of age presented, that the persons for whose marriage the license in question is demanded are legally competent to marry, the said clerk shall issue such license.

3. If it shall appear upon an application of the applicants as provided in this section or upon information required by the clerk that either party is at least seventeen years of age but under eighteen years of age, then the town or city clerk before he shall issue a license shall require:

(a) the written consent to the marriage from both parents of the minor or minors or such as shall then be living, or if the parents of both are dead, then the written consent of the guardian or guardians of such minor or minors. If one of the parents has been missing and has not been seen or heard from for a period of one year preceding the time of the application for the license, although diligent inquiry has been made to learn the whereabouts of such parent, the town or city clerk may issue a license to such minor upon the sworn statement and consent of the other parent. If the marriage of the parents of such minor has been dissolved by decree of divorce or annulment, the consent of the parent to whom the court which granted the decree has awarded the custody of such minor shall be sufficient. If there is no parent or guardian of the minor or minors living to their knowledge then the town or city clerk shall require the written consent to the marriage of the person under whose care or government the minor or minors may be before a license shall be issued. If a parent of such minor has been adjudicated an incompetent, the town or city clerk may issue a license to such minor upon the production of a certified copy of such judgment so determining and upon the written consent of the other parent. If there is no other parent whose consent is required by this section, then and in such event, the town or city clerk shall require the written consent of the guardian of such minor or of the person under whose care or government the minor may be before a license shall be issued. The parents, guardians, or other persons whose consent it shall be necessary to obtain and file with the town or city clerk before the license shall issue, shall personally appear and acknowledge or execute the same before the town or city clerk, or some other officer authorized to administer oaths and take acknowledgments provided that where such affidavit or acknowledgment is made before an official other than an officer designated in section two hundred ninety-eight of the real property law as authorized to take such affidavit or acknowledgment if a conveyance of real property were being acknowledged or proved, or if a certificate of authentication would be required by section three hundred ten of the real property law to entitle the instrument to be recorded if it were a conveyance of real property, the consent when filed must have attached thereto a certificate of authentication ; and

(b) the written approval of a justice of the supreme court or of a judge of the family court, having jurisdiction over the town or city in which the application is made, to be attached to or endorsed upon the application, before the license is issued. The application for such approval may be made by either minor party to the proposed marriage and shall be heard by the judge at chambers. The justice of the supreme court or the judge of the family court shall appoint an attorney for the child for each minor party immediately upon the application for approval. The attorney for the child must have received training in domestic violence including a component on forced marriage. All papers and records pertaining to any such application shall be sealed and withheld from inspection, except by order of a court of competent jurisdiction. Before issuing any approval, the justice of the supreme court or the judge of the family court shall:

(i) provide notification to each minor party of his or her rights, including but not limited to, rights in relation to termination of the marriage, child and spousal support, domestic violence services and access to public benefits and other services, which notification shall be developed by the office of court administration, in consultation with the office for the prevention of domestic violence;

(ii) with respect to each party, including a minor party, conduct a review of related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act, and reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law ; and

(iii) have an in camera interview, separately with each minor party, and make the following written affirmative findings:

A. that it is the minor's own will that the minor enter into the marriage;

B. that the minor is not being compelled by force, threat, persuasion, fraud, coercion or duress; and

C. that the marriage will not endanger the mental, emotional or physical safety of the minor.

In making such findings, the court shall consider, among other relevant factors, the age difference between the parties intending to be married, whether there is a power imbalance between the parties intending to be married, whether the parties are incapable of consenting to a marriage for want of understanding, whether there is a history of domestic violence between the parties and whether there is a history of domestic violence between a party and either parties' or legal guardians' family members. The wishes of the parents or legal guardians of the minor intending to be married shall not be the sole basis for approval under this subdivision.

Upon the approval of the justice of the supreme court or the judge of the family court of the application to marry, each minor party shall have all the rights of an adult, including the right to enter into a contract, except for those specific constitutional and statutory age requirements such as, but not limited to, voting, use of alcoholic beverages, and other health or safety statutes relevant to him or her because of his or her age.

4. Before issuing any licenses herein provided for, the town or city clerk shall be entitled to a fee of thirty dollars, which sum shall be paid by the applicants before or at the time the license is issued. Any town or city clerk who shall issue a license to marry any persons one or both of whom shall not be at the time of the marriage under such license legally competent to marry without first requiring the parties to such marriage to make such affidavits and statements or who shall not require the production of documentary proof of age or the procuring of the approval and consents provided for by this article, which shall show that the parties authorized by said license to be married are legally competent to marry, shall be guilty of a misdemeanor and on conviction thereof shall be fined in the sum of one hundred dollars for each and every offense. On or before the fifteenth day of each month, each town and city clerk, except in the city of New York, shall transmit to the state commissioner of health twenty-two dollars and fifty cents of the amount received for each fee collected, which shall be paid into the vital records management account as provided by section ninety-seven-cccc of the state finance law. In any city the balance of all fees collected for the issuing of a marriage license, or for solemnizing a marriage, so far as collected for services rendered by any officer or employee of such city, shall be paid monthly into the city treasury and may by ordinance be credited to any fund therein designated, and said ordinance, when duly enacted, shall have the force of law in such city. Notwithstanding any other provisions of this article, the clerk of any city with the approval of the governing body of such city is hereby authorized to designate, in writing filed in the city clerk's office, a deputy clerk, if any, and/or other city employees in such office to receive applications for, examine applications, investigate and issue marriage licenses in the absence or inability of the clerk of said city to act, and said deputy and/or employees so designated are hereby vested with all the powers and duties of said city clerk relative thereto. Such deputy and/or employees shall perform said duties without additional compensation.

5. Notwithstanding any other provision of this section, the city clerk of the city of New York, before issuing any licenses herein provided for, shall be entitled to a fee of twenty-five dollars, which sum shall be paid by the applicants before or at the time the license is issued and all such fees so received shall be paid monthly into the city treasury.

Whether you are seeking a pre-nuptial agreement, seeking a divorce, or need help with child custody or child support, or need to resolve another type of family law issue, contact an experienced New York family lawyer at the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience, we have the skill and knowledge to protect your interests. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.