Is a marriage valid in Maryland if the person who performed the ceremony wasn't legally authorized to?

Plain-English summary

The Clerk of the Circuit Court for Howard County asked the Attorney General in 1990 whether marriages were still valid when they had been performed by an employee of the clerk's office who used to be a deputy clerk but had never been reappointed and resworn after the 1986 election. The worry was that this person had kept performing wedding ceremonies for several years without formally holding the deputy-clerk office that lets someone officiate.

The Attorney General gave a two-part answer. First, on the strict legal question of who may perform a marriage, only three kinds of people qualified under Family Law §2-406: a religious official, any clerk of the circuit court, and a deputy clerk who had been designated by the county administrative judge. A deputy clerk's term ran with the elected clerk's term, so a deputy clerk had to be reappointed and resworn at the start of each new term. Once that did not happen, the person became an ordinary "employee," not a deputy clerk, and was no longer authorized to officiate. Second, and more importantly for the couples involved, the marriages were still completely valid anyway. Maryland had long followed the rule that a marriage performed by someone who reasonably appeared to hold the office is valid even if that person actually lacked authority. The opinion concluded the couples married by this employee needed to take no further action.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion read Family Law §2-406 as it stood in 1990, before a constitutional amendment on the appointment of deputy clerks (Chapter 62 / Senate Bill 842 of 1990) that was still awaiting a November 1990 voter ratification when the opinion issued. Section numbers and the mechanics of appointing deputy clerks have changed since; the case law the opinion relied on for the validity of a marriage performed under apparent authority (led by Knapp v. Knapp) reflects long-standing Maryland policy, but confirm current statutes before relying on any specific rule cited here.

Common questions

Is a marriage valid in Maryland if the person who performed it turned out not to be authorized?
Under this 1990 opinion, yes. The Attorney General concluded that a marriage performed by someone who reasonably appeared to hold the authority to officiate was valid even if that person actually lacked authority in fact. The opinion grounded this in Maryland's long-standing case law and in a public policy that strongly favors upholding marriages.

Who was allowed to perform a marriage in Maryland under this opinion?
Family Law §2-406 listed three categories: an official of a religious order or body authorized by that body's rules to perform ceremonies, any clerk of the circuit court, and a deputy clerk who had been designated for that purpose by the county administrative judge. A general employee of the clerk's office who was not a sworn, designated deputy clerk did not qualify.

Why couldn't a regular clerk's-office employee legally perform marriages?
A deputy clerk held an actual office: appointed by the elected clerk, confirmed by the court's judges, and sworn in under the oath required by the Courts Article. That term ran with the elected clerk's term, so a deputy clerk had to be reappointed and resworn when the clerk began a new term. If the clerk chose not to reappoint someone who stayed on the payroll, that person became an "employee" and lost deputy-clerk status, and a designation to perform marriages that had been valid before no longer carried over.

Did the couples married by the unauthorized employee have to remarry?
No. The opinion stated the marriages were entirely valid and that the couples "need take no further action whatever." The lack of authority in the officiant did not, by itself, void the marriage.

What legal reasoning made the marriages valid despite the missing authority?
The opinion relied on the "apparent authority" branch of the law of public officers, drawn from Knapp v. Knapp, where the Court of Appeals (then Maryland's highest court) upheld a marriage performed by someone who reasonably appeared to be a minister but had no actual authority. It reinforced that with cases holding that other statutory defects, like a missing or fraudulently obtained marriage license, did not void a marriage, and with the point that when the General Assembly wanted a defect to void a marriage it said so expressly, as it did for marriages within prohibited degrees of relationship.

Background and statutory framework

The question turned on two separate bodies of law: the statute naming who may solemnize a marriage, and the older common-law rule about acts done by people who appear to hold public office.

On the first, Family Law §2-406 allowed a marriage ceremony to be performed by a religious official, "any clerk," or "any deputy clerk designated by the county administrative judge of the circuit court for the county." The statute defined "clerk" as a clerk of the circuit court of a county (FL §2-201(c)), and the civil-ceremony option for clerks and designated deputy clerks had been added to the Code by Chapter 406 of the Laws of Maryland 1963. A deputy clerk was not simply an employee: the position was filled by appointment under Article IV, §26 of the Maryland Constitution, confirmed by the judges of the court, and the appointee had to take the oath of office prescribed by §2-104(b) of the Courts Article, with the oath serving as a prerequisite to qualifying for the office (Article I, §10 of the Constitution). Because a deputy clerk's term ran concurrently with the elected clerk's, the deputy had to be reappointed and resworn at the start of each new term. When the clerk chose not to do that for someone who remained in the office's employment, the opinion reasoned, that person became an "employee" who no longer qualified as a deputy clerk, so a marriage designation that had been effective earlier lapsed. The opinion noted that a then-pending 1990 constitutional amendment, Chapter 62 (Senate Bill 842), contingent on ratification by the voters in November 1990, would change how deputy clerks were appointed and removed.

On the second body of law, the opinion explained why the resulting marriages were valid anyway. In Knapp v. Knapp, 149 Md. 263 (1925), the Court of Appeals upheld a marriage performed by someone who reasonably appeared to be a minister despite a complete absence of actual authority, relying on the settled rule that the public cannot be expected to investigate an apparent officer's title before dealing with him. The opinion treated a supposed deputy clerk the same way a supposed minister was treated in Knapp. It reinforced the point with the principle, reflected in a 1938 Maryland Law Review article by Strahorn and in out-of-state decisions (Farley v. Farley in Alabama, Haggin v. Haggin in Nebraska, Holder v. State in Texas, and the Uniform Marriage and Divorce Act), that a marriage entered into on a reasonable belief in the officiant's authority holds up. Maryland cases had likewise refused to void marriages for other statutory defects: Feehley v. Feehley (1916) rejected the argument that failing to secure a required license voided a marriage, and Picarella v. Picarella (1974), in the Court of Special Appeals, applied the same reasoning to a license obtained by fraud, both resting on the policy stated in Oswald v. Oswald that marriage "should not be lightly set aside." Finally, the opinion observed that when the General Assembly meant a defect to void a marriage, it said so, as in FL §2-202, which declares marriages within certain prohibited degrees of relationship "void." Section 2-406 contained no comparable language, so a marriage performed by an unauthorized officiant was not void.

Citations and references

Statutes and constitutional provisions:

• FL §2-406 and §2-406(a), listing who may perform a marriage ceremony (religious officials, clerks, and designated deputy clerks)
• FL §2-201(c), defining "clerk" as a clerk of the circuit court of a county
• FL §2-202, declaring marriages within certain prohibited degrees of relationship void
• Article IV, §26 of the Maryland Constitution, on appointment of deputy clerks
• §2-104(b) of the Courts Article, prescribing the deputy clerk's oath of office
• Article I, §10 of the Constitution, making the oath a prerequisite to qualifying for office
• Chapter 406 of the Laws of Maryland 1963, adding the civil-ceremony option for clerks and designated deputy clerks
• Chapter 62 (Senate Bill 842) of the Laws of Maryland 1990, a then-pending constitutional amendment on deputy-clerk appointment and removal
• Uniform Marriage and Divorce Act, 9A U.L.A. §206(d)

Cases:

• Knapp v. Knapp, 149 Md. 263, 131 A. 329 (1925), upholding a marriage performed by a supposed minister under the law of apparent authority
• O'Leary v. Shipley, 313 Md. 189, 191 n. 1, 545 A.2d 17 (1988), on the reappointment and reswearing of deputy clerks
• Feehley v. Feehley, 129 Md. 565, 99 A. 663 (1916), holding a missing marriage license did not void a marriage
• Picarella v. Picarella, 20 Md. App. 499, 361 A.2d 826 (1974), applying that reasoning to a fraudulently obtained license
• Oswald v. Oswald, 146 Md. 313, 126 A. 81 (1924), for the policy that marriage should not be lightly set aside
• Fensterwald v. Burk, 129 Md. 131, 98 A. 358 (1916), on a prohibited-degree marriage held valid because valid where performed
• Farley v. Farley, 94 Ala. 501, 10 So. 646 (1891); Haggin v. Haggin, 35 Neb. 375, 53 N.W. 209 (1892); Holder v. State, 35 Tex. Crim. 19, 29 S.W. 793 (1895), out-of-state decisions upholding marriages entered on a reasonable belief in the officiant's authority

The opinion also cited 43 Opinions of the Attorney General 119 (1958) on the reappointment of deputy clerks, and the Strahorn article, Void and Voidable Marriages in Maryland and Their Amendment, 2 Md. L. Rev. 211, 221 (1938).

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 90-95 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CLERKS OF COURT

Deputy Clerks — Marriages — Marriages Performed By Employee After Expiration of Appointment as Deputy Clerk Are Nonetheless Valid

September 25, 1990

The Honorable Merritt Pumphrey, Clerk
Circuit Court for Howard County

 You have requested our opinion concerning the validity of marriages performed by an employee of your office. Specifically, you ask if marriages performed since 1986 by an employee who was, prior to 1986, a deputy clerk designated to perform marriages are valid even if the employee was not reappointed and resworn after the 1986 election.

 For the reasons given below, we conclude that the marriages performed by the employee are entirely valid. The couples married by this employee need take no further action whatever.

I

Authority of Designated Deputy Clerks to Perform Marriages

 Section 2-406 of the Family Law Article ("FL" Article) provides:

      A marriage ceremony may be performed in this State by:

          (1) any official of a religious order or body authorized by the rules and customs of that order or body to perform a marriage ceremony;

          (2) any clerk; or

          (3) any deputy clerk designated by the county administrative judge of the circuit court for the county.1

 A deputy clerk is a person appointed by the clerk of a circuit court pursuant to Article IV, §26 of the Maryland Constitution and confirmed by the judges of that court.2 A deputy clerk, once appointed and confirmed, is required to take the oath of office prescribed by §2-104(b) of the Courts Article. The oath of office is a prerequisite to qualifying for the office of deputy clerk. See Article I, §10 of the Constitution.

 A deputy clerk's term of office is concurrent with that of the elected clerk, other than in Washington County; a deputy clerk is subject to reappointment by the clerk, in the exercise of the clerk's discretion and subject to confirmation of the judges, and must be resworn at the beginning of the clerk's new term of office. See 43 Opinions of the Attorney General 119 (1958). See also O'Leary v. Shipley, 313 Md. 189, 191 n. 1, 545 A.2d 17 (1988).

 When the clerk elects not to reappoint and reswear an individual to a new four-year term as a deputy clerk, that person, if he or she continues in the clerk's employment, becomes an "employee" of the clerk and no longer qualifies as a "deputy clerk." Since the county administrative judge has no authority to designate someone other than a deputy clerk to perform marriages, a designation properly made when an individual was a deputy clerk is no longer effective after the individual ceases to be a deputy clerk, whether by reason of resignation, retirement, failure to be reappointed to a new term, or any other termination of the status of deputy clerk.

 Therefore, an employee of the clerk's office is not authorized to perform marriages under FL §2-406 unless, at the time the marriage is performed, the person is a duly qualified deputy clerk who has been designated by the county administrative judge to perform marriages.3

II

Validity of Marriages Performed by Non-Deputized Employee of Clerk

 Although, as stated in Part I above, an employee of the clerk's office who is not a duly appointed and sworn deputy clerk is not authorized under Maryland law to perform marriages, any marriage performed by the employee under apparent authority to do so is nonetheless valid. This conclusion is firmly rooted in both Maryland case law and sound public policy favoring the validity of marriage.

 In Knapp v. Knapp, 149 Md. 263, 131 A. 329 (1925), the Court of Appeals held that a marriage performed by one who reasonably appeared to be a minister was valid despite complete absence of authority in fact. While this case was decided at a time when Maryland law required a religious ceremony and before the law expressly authorized a civil ceremony performed by a clerk or designated deputy clerk, the rationale of the case is unquestionably applicable to a marriage performed by a person who reasonably appears to be a designated deputy clerk.

 In upholding the marriage performed by the supposed minister, the Court relied on the law of public officers and stated as follows:

      The law has long recognized that because of this inability of the public to go behind apparent authority, dealings of supposed officers, who are in fact not qualified, must be given effect nevertheless. "Third persons who have occasion to deal with a public officer and to rely upon his acts, finding a person in the apparent possession of the office and ostensibly exercising its functions lawfully and with the acquiescence of the public, can neither be expected to know, nor to investigate, in every instance, his title to the office or his eligibility to election to it. As to them, he must be held to be what he appears to be, the lawful occupant of the office. This rule is demanded by public policy as the only one affording protection to the public." ... And the reason for that rule applies with even more force to a case of marriage before an unauthorized minister.

149 Md. at 268 (citations omitted). Because the marriage by a supposed minister in Knapp was upheld by the Court on the basis of the law of apparent authority of supposed public officers, it necessarily follows that the validity of a marriage by a supposed public officer (a deputy clerk) is also upheld by the same decision. See Strahorn, Void and Voidable Marriages in Maryland and Their Amendment, 2 Md. L. Rev. 211, 221 (1938) ("[T]he case of Knapp v. Knapp decided that, even if the celebrant lacked appropriate authority, if the parties acted on the belief that he had it the marriage is valid.").

 The case of Knapp v. Knapp has never been overruled or modified. In fact, Knapp simply affirmed a longstanding principle upholding marriages entered into upon the reasonable belief of the parties that the person officiating over the ceremony had been authorized to do so. See Farley v. Farley, 94 Ala. 501, 10 So. 646 (1891); Haggin v. Haggin, 35 Neb. 375, 53 N.W. 209 (1892); Holder v. State, 35 Tex. Crim. 19, 29 S.W. 793 (1895). See also Uniform Marriage and Divorce Act, 9A U.L.A. §206(d) at 166-67.

 Additionally, Maryland cases have held that failure to comply with certain other statutory requirements concerning marriage does not invalidate the marriage. For example, in Feehley v. Feehley, 129 Md. 565, 99 A. 663 (1916), the Court of Appeals rejected a contention that failure to secure a marriage license as required by law rendered a marriage void. Furthermore, in 1974, the Court of Special Appeals had occasion to address the effect of a marriage performed with a license procured by fraud. Picarella v. Picarella, 20 Md. App. 499, 361 A.2d 826 (1974). Despite the fraud, the court applied the reasoning of the Feehley decision to find the marriage valid. Both the Feehley and Picarella decisions rested upon the theory that "[i]n contracts of marriage there is an interest involved above and beyond that of the immediate parties. Public policy requires that marriage should not be lightly set aside." 20 Md. App. at 504, (quoting Oswald v. Oswald, 146 Md. 313, 126 A. 81 (1924)).

 The Picarella court, citing Feehley, noted that the Maryland Code nowhere provides that a marriage contracted in violation of its licensing provisions is invalid:

      "In view of the important considerations of morality and legitimacy involved, it is manifestly a sound and just rule of construction the statutes providing for marriage licenses are not held to have the effect nullifying, for non-compliance with their terms, a marriage valid at common law, unless such an intention is plainly disclosed. ... [A] statutory provision for license to marry should not be regarded as mandatory, and vital to the validity of a marriage, in the absence of a clear indication of a legislative purpose that it should be so construed."

20 Md. App. at 512-13 (quoting Feehley, 129 Md. at 568-69).

 This same reasoning must apply when construing the statutory provision governing who may perform marriages in Maryland. If the General Assembly had intended that marriages performed in violation of FL §2-406 would be invalid, it could have expressly so provided. In fact, when the General Assembly did intend such a consequence, that intent was expressly stated. For example, FL §2-202 governing marriages within certain degrees of relationship clearly states, "[a]ny marriage performed in this State that is prohibited by this section is void."4 By contrast, the law does not provide that a marriage is invalid if performed by someone who does not satisfy the requirements of §2-406(a).

III

Conclusion

 In summary, it is our opinion that an employee of the clerk's office is not authorized by Maryland law to perform marriages unless, at the time of the marriage, that individual is a duly appointed and sworn deputy clerk who has been designated by the county administrative judge to perform marriages. Nevertheless, marriages performed by an employee of the clerk's office who reasonably appears to be a deputy clerk with authority to perform marriages are valid.

                                        J. Joseph Curran, Jr.
                                        Attorney General

                                        Julia M. Freit
                                        Assistant Attorney General

                                        Jack Schwartz
                                          Chief Counsel
                                          Opinions and Advice

1
FL §2-201(c) defines "clerk" as "a clerk of the circuit court of a county." The allowance of a civil ceremony performed by the elected clerk of a circuit court or any designated deputy clerk was added to the Code by Chapter 406 of the Laws of Maryland 1963.

2
Under Chapter 62 (Senate Bill 842) of the Laws of Maryland 1990, contingent on ratification by the voters in November 1990, Article IV, §26 is amended to provide that deputy clerks and other employees of the clerk's office shall be appointed and removed according to procedures set by law.

3
In a May 13, 1988 letter of advice to the Honorable Suzanne Mensh, Clerk of the Circuit Court for Baltimore County, concerning whether the general duties of the clerk or deputy clerk of the court could be performed by assistant clerks, Assistant Attorney General Julia Freit advised that assistant clerks could perform those duties not specifically restricted to the clerk or deputy clerk. Inasmuch as that letter did not address the performance of a specifically restricted duty, like performing marriages, by one unauthorized to do so, it is not relevant to the present inquiry.

4
In Fensterwald v. Burk, 129 Md. 131, 98 A. 358 (1916), the Court of Appeals held that a marriage between an uncle and niece, despite being in violation of the statute, was valid because the marriage was valid in Rhode Island where it had been performed.