legitimate. Te County Clerk must verify the age of both parties and may treat birth certifi- cates as concrete proof of age. Driver’s licenses are allowed as proof of age as well, yet birth cer- tificates are clearly preferred as they are far less likely to contain fraudulent information.


❥ Question 3: When someone gets married out of the state or in a foreign country, can they do so based upon a marriage license issued in Arkansas?


❥ Answer: Yes, A marriage performed


abroad will be “recognized” as legitimate within the State of Arkansas, so long as that marriage was performed validly under that country’s rules and procedures. However, in order for a license to be “recorded” in Arkansas the marriage must be solemnized by one of the above stated officers listed under A.C.A § 9-11-213. see § 9-11-107, Validity of foreign marriages. In other words, if a marriage is performed out of state by a person without the prerequi- site credentials (meaning they are not licensed in Arkansas), the marriage is still legitimate, but no Arkansas marriage license can be recorded by the County Clerk until the couple have their nuptials solemnized by one of the above stated Arkansas licensed officials or clergymen. If the marriage is performed out of state, but solemnized by an Arkansas licensed official or clergyman the marriage is legitimate and an Ar- kansas marriage license may be recorded. (Also see AG opinion below). In June 2006, Representative Mathis of Hot


Springs posed an interesting question to the Ar- kansas Attorney General on behalf of an Arkan- sas citizen requesting to be married in Croatia. Te citizen asked, “Since we will not be married by a minister registered with the State of Arkan- sas, what must I do to get my marriage recog- nized once we get home?” Te Deputy AG answered (Opinion No. 2006-105): “In my opinion, Arkansas’s recog- nition of the marriage described by your constit- uent is not dependent upon solemnization by a minister registered in Arkansas. Rather, the mar- riage in my opinion will be recognized as valid in the State of Arkansas based upon the fact of full compliance with the prerequisites for contract- ing and solemnizing a marriage in Dubrovnik, Croatia.” No Arkansas marriage license will be issued until the marriage is solemnized by one of the Arkansas officials recognized under A.C.A 9-11-213.


❥ Question 4: Can a JP, County Judge or Supreme Court Justice perform a mar-


COUNTY LINES, WINTER 2011 31


riage in another state? In a foreign coun- try?


❥ Answer: Te answer would seem to be yes. Although the law does not explicitly state that Justices of the Peace and Supreme Court Justices can perform marriages out of state, the Arkansas Code does list JPs and Supreme Court Justices within the same list of officers and clergymen that are authorized within the state to solem- nize marriages under A.C.A


§ 9-11-213. All


of these listed officers may officiate ceremonies within the state; therefore this is supportive of the notion that there is no cause to differentiate between any officer or clergyman with respect to their authority to solemnize marriages outside of the state of Arkansas as well. JPs and Supreme Court Justices seem to be


given the same equal authority as their counter- parts and therefore marriages performed either outside of or inside the state by either official, should be deemed valid.


❥ Question 5: What is the minimum age requirement of marriage, what is my discretionary authority as a clerk in awarding marriage licenses, and when is parental consent deemed inappropriate?


❥ Answer: Arkansas sets the minimum age of those licensed to marry at age 17 for males and age 16 for females. However, both males and females under the legal age of consent, which is 18, must provide satisfactory evidence of their parents or guardians’ consent to the mar- riage. Consent of both parents is needed unless the minor is under the sole custody of one par- ent; custody of the minor has been surrendered by one parent through abandonment of deser- tion. In these instances the child only needs the consent of that one parent who does have cus- tody. A.C.A § 9-11-102. A parent may be deemed an inappropriate


source of consent and therefore unable to give consent if the court deems the parent is unfit to


make decisions concerning the child; and the marriage is not in the child’s best interest. How- ever, this is a court’s discretionary function and not the clerk’s. Clerks must wait a period of five business days for any marriage license issued to a minor. Tis five day waiting period begins the day after the application has been filed. A parent may challenge the validity of a mi- nor marriage and have it annulled by the court under A.C.A § 9-11-104, “Minimum age -- Lack of parental consent or misrepresentation of age -- Annulment,” if the parent did not give actual consent and or the minor lied about their age in order to procure the license.


❥ Question 6: Do I have to provide a marriage license to a minor even if I have reservations about the minor marrying a person substantially older than them?


❥ Answer: Yes, if the parent consents to the marriage and they are of the legal minimum age to consent to the marriage, they are entitled to the license. Te court may still object to the marriage if the marriage is deemed to be not in the minor’s best interest. (See AG opinion be- low regarding clerk’s discretion regarding issuing marriage licenses to minors). Opinion No. 2007-068, A.C.A. § 9-11- 104 (Repl. 2002):


“With regard, specifically,


to the clerk’s obligation to issue a marriage li- cense, I note that subsection 9-11-104(b)(2), as amended by Act 441, supra, provides that “[t]he County Clerk may issue a marriage license to a person who is younger than 18 years of age and who is not pregnant after the County Clerk re- ceives satisfactory evidence of parental consent. . . .” (Emphasis added). Te word “may” at first glance might suggest that the clerk has some dis- cretion in this respect. It is clear from a review of other statutes on the subject, however, that the clerk’s discretion is limited to determining whether the applicants have met the legal requirements to obtain a li- cense and have paid the necessary fee.


Tis is just a small compilation of research on


the most pressing questions of County Clerks regarding their duties under Arkansas code sec- tions, ACA 9-10-101 et seq.; ACA 9-10-201 et seq.; and ACA 9-10-301 et seq. Email Keia for more information at: lawclerk1@arcounties.org


Keia Johnson of Eudora is one of two law clerks /


interns assisting the AAC research staff; she is a full- time student at the University of Arkansas School of Law.


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