Tag Archive for Marriage Records

Confidential Marriage in the United States

October 6, 2009 Craig Family History, Genealogy

Even If There Is No Record, There Still Might Be A Marriage

Another issue for genealogists to consider is that of “confidential marriage.”  In California, a couple who have lived together may obtain a so-called “confidential” marriage.  They need only apply at the county clerk’s office or before a notary specially trained in confidential marriage procedures and claim that they have lived together prior to being married.  The California Family  Code has no time provisions for the cohabitation.  The couple then will receive a confidential marriage license.  Once the marriage is solemnized, the couple may apply for a copy of their confidential marriage certificate.

Confidential marriage records are not open to tje public.  Only the parties to the marriage may obtain these records, except by order of a court.

The question has been asked why, in this era where many, perhaps most, couples have cohabited prior to marriage, would someone want a “confidential marriage”?  The answers vary.   Some say certain people just want the privacy.  Others say that in some cases where pregnancy has resulted before marriage, the couple can keep that fact away from their children later on.  On a California notaries website, I found the story of a couple who had been married in another country in a manner that California did not recognize (this would be  a very rare and unusual situation since California law provides that ” A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.”) So this couple needing to be legally married some time later, opted for a confidential marriage.

There was a time in California and many other states that a “waiting period”  was required between the issuance of a marriage license and the marriage ceremony.   California and many of the other such states also required blood tests of one or both of the parties, most usually for rubella, or in some states, venereal diseases.   These tests generally are no longer required, but in the day, the confidential marriage was a way around them. (The District of Columbia and Mississippi still require blood test for both partners; Montana requires a test for the bride only; New York requires sickle-cell test of all African-American and Hispanic couples).

A California notary opined on the above-mentioned notaries chat forum that confidential marriages seem to occur most frequently in resort areas that have wedding chapels used by people who elope.  I think that’s probably correct.  My first encounter with the concept came when  I (as a former judge) performed a marriage ceremony at Lake Tahoe, California.

There’s another reason for a confidential marriage–not indulged in by the vast majority of people, but it occurred to one particular woman.   According to the U.S. Attorney’s office in Sacramento, Janet Manser-LaMont purchased a confidential marriage license in 1991 and for the next fifteen years, fraudulently received more than $130,000 in Social Security benefits by claiming she was unmarried.

California is the only state that presently permits confidential marriage.  Other states may have authorized it in the past, but I don’t know specifically.   Readers may recall having seen reference in this earlier post to a marriage license of a certain well-known individual who got married in Missouri; the handwritten words “Please do not publish” appear on the face of the document. Below, presented for what I believe is the first time publicly, is that marriage license.

aurandt marr

Marriage License issued to Paul Harvey Aurandt (aka “Paul Harvey”) and Evelyn Betts (aka Lyn “Angel” Cooper)

Ste Genevieve County, Missouri, August 1940

(click to enlarge)

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Common Law Marriage: Scotland & Quebec

October 6, 2009 Craig Family History, Genealogy, Scotland

As I had hoped,  some of our international correspondents checked in on this issue.  Kirsty says:

In Scotland, the situation was a bit different from England, or at least less clear. There seems to have been contradictory legislation and, I think, the more I read on the topic of Scottish Marriage Law the more confused I get!

In practice there were two main forms of marriage: “regular” (i.e. marriage by clergyman following the proclamation of banns) and “irregular”. The most common form of irregular marriage was a declaration of marriage in front of witnesses. I have relatives who were married this way in the 1930s.

Of particular relevance to this discussion though was marriage “by habit and repute” – where a co-habiting couple were regarded as husband and wife. This was abolished in Scotland as recently as 2006 by which time it had become very rare, probably because proving legally that such a marriage existed was a lot more trouble than simply going through a Civil Marriage Ceremony!

My original post mentioned the Marriage Act 1753.  Those who recall their history classes will take notice that the Act did not apply to Scotland, which after the Act of Union 1707, retained its own legislative authority

Thanks, Kirsty! By the way, Kirsty’s excellent blog is also one of the nominees (in the Heritage category) in the Family Tree Magazine Top 40 Best Blogs poll. Check it out at The Professional Descendant. She’s recently had a post on Scottish Catholic Registers and an interesting one about An Irregular Catholic Marriage.

I also received an email from Gilles Cayouette of Quebec, who referred me to  a post on his blog, Le chercheur nomade – The Nomadic Researcher.   The French reads:

La bénédiction d’un mariage déjà contracté à Natashquan

Les registres de la paroisse Notre-Dame de Natashquan font état pour le 28 juillet 1862 de l’acte de mariage suivant :

«M. 3 Antoine Marcoux et Elisabeth Hawkins

Le vingt huit juillet mil huit cent soixante te deux, vû le mariage déjà contracté le quatre juin de cette année, en présence de Edward Sheehyn, Michel Kanty et Guillaume Kanty, entre Antoine Marcoux, veuf de Angèle Célina Kenty de la Tête a la Baleine, d’une part; et Elisabeth Hawkins, fille mineure de Alexandre Hawkins et de défunte Archange Guilmet de la Baie des Moutons d’autre part, ne s’étant déclaré aucun empêchement au dit mariage, nous Prêtre, missionnaire soussigné, avons béni leur union en présence de Guillaume Kenty, Michel Kenty, père et Edward Sheehyn soussignés avec l’époux. L’épouse n’a su signer.
Benjamin Read Antoine Marcoux Edward Sheehyn William Canty Michel Canty F.M. Fournier Ptre».

À l’évidence, cette union faisait l’objet d’un consensus social et en particulier de la part des proches de l’ancienne épouse. Dans les circonstances, le missionnaire en bénissant cette union a fait preuve de gros bon sens et a pris acte du contexte.

Using my flawless altar-boy Latin and legal French, I translated it thusly:

The blessing of a marriage already contracted  at Natashquan

The records of the parish of Notre-Dame de Natashquan report on July 28, 1862 of the following marriage :

3 Antoine Marcoux and Elizabeth Hawkins

The twenty-eight July, one thousand eight hundred and sixty. Concerning the marriage already contracted on June fourth of this year, in the presence of Edward Sheehyn, Michael Kanty and William Kanty, between Antoine Marcoux, widower of Angela Celina Kanty of Whaleshead on the one hand, and Elizabeth Hawkins, minor daughter of Alexander Hawkins and the late Archangel Guilmet of Sheeps Bay on the other hand, no impediment to the said marriage having been reported, we, the missionary Priest undersigned, have blessed their union in the presence of William Kanty, Michael Kanty, father, and Edward Sheehyn undersigned with the husband. The wife has been able to sign.

/s/ Benjamin Read
Antoine Marcoux
Edward Sheehyn
William Kanty
Michel Kanty
FM Fournier, Priest

Clearly, this union was the subject of a social consensus, in particular on the part of the relatives of the deceased wife. In the circumstances, the missionary took note of the context, and showed common sense in blessing this union.

[How's my translation?]

Gilles added in his email:

You must note that, in Québec, the church records were historically (in fact until January 1st, 1994) kept by Catholic priests and they were recognised as legal by the civil authorities; a situation which arouses some some interesting legal questions…

Merci, M. Cayouette!

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Common Law Marriage In the United States of America

October 4, 2009 Craig Family History, Genealogy

When I discovered that my maternal grandparents likely had no marriage certificate, someone suggested that that meant they had a “common law” marriage.   Maybe, maybe not.

The term “common law marriage” is frequently misunderstood.  Many believe if a couple co-habits for a certain fixed period of time, they have a common law marriage.  Some believe that if a couple produces children together, they have a common law marriage.  In fact both of these conceptions are incorrect in the United States.

Sop what exactly is “common law marriage?”

“Common law marriage” is also referred to as “informal marriage.”   Thar means that the couple became married without the usual formalities such as a licence, banns, and a ceremony.  In Rome and in the early Christian church, all marriages were informal.  A couple desiring to be married could simply co-habit and declare their mutual consent that they were married.  This informality, allege some, led to “clandestine” marriages or even sham marriages.   At the very least it would seem to have created some confusion as to the requisite elements of a valid marriage.

The Roman Catholic Church at the Council of Trent in 1563 for the first time imposed formal requirements on marriage.   These include that the marriage be witnessed by a priest and two other individuals.  The Church also began to require “banns of marriage”: a formal announce of the intent of tow parties to be married, which was required to be read at Mass on Sundays and Holy Days for three consecutive weeks before the ceremony.  The purpose was to allow any knowledgeable person to raise objections to the proposed union, such as lack of age, lack of consent, a prior unannulled marriage, or sanguinity issues. (The Catholic Church abandoned the publication of banns in 1983).

In England, informal marriage continued, in part because of the conflicts between the Church of England and the Roman Church.  However,  in 1753, Parliament passed the Marriage Act, which abolished informal marriages and instituted Roman Catholic-like requirements for the solemnization of marriage.

The Marriage Act 1753 did not apply to the North American colonies.   Thus, informal marriage (or “common law” in the sense non-statutory marriage) continued to be practiced in many of the colonies, although many of the colonies had adopted statutes similar to the Marriage Act.

In 1877, the United States Supreme Court was confronted with the issue of  common law marriage (or as the court put it, “informal marriage by contract per verba de praesenti.”)  The issue arose in a dispute between two men claiming the same real property.  Miester v. Moore, 96 U.S> 76 (1877).   Meister claimed that he had purchased certain lands in Michigan from the wife and daughter of William Mowry, deceased.  Moore claimed that he had purchased the same lands from the mother of the deceased Mowry.  If Mowry had died unmarried and without children, then Moore’s claim would be valid.  But if Mowry indeed had been married with “issue” (a child), then Meister’s claim would be valid.

Meister claimed that Mowry had married a woman in 1845 with whom he thereafter cohabited and had a child.   Moore claimed that Mowry’s marriage di not comply with the formalities of the Michigan marriage statute, and thus was invalid.  The U.S. Supreme Court, relying in part on a decision by the Michigan Supreme Court, held that the evidence atg leats showed an informal contract of marriage between Mowry and the woman involved.  The Court said: “That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country, from its earliest settlement to the present day.”   Concenrin g the statute, the Court decieded, “No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed.”  The Michigan statute had no plain disapproval of informal marriage. Citing the eminent jurist Simon Greenleaf, the Court concluded

‘Though in most, if not all, the United States there are statutes regulating the celebration of marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered, that, in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.’

As a result of the Meister case, most states adopting marriage statutes made specific decisions as to whether common law or informal marriage would be allowed. Only a handful states today permit “common law marriage.” These are:

  • Alabama
  • Colorado
  • District of Columbia
  • Iowa
  • Kansas
  • Montana
  • Oklahoma
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

There are a few states that recognize informal marriages which were contracted for up to the time they were statutorily abolished in those states:

  • Georgia (until January 1, 1997)
  • Idaho (January 1, 1996)
  • Ohio (October 10, 1991)
  • Pennsylvania (January 1, 2005)

Colorado’s statute is a fairly typical one in the states where common law marriage is still permitted.  Both spouses must (1) be legally free to contract a valid ceremonial marriage, (2) hold themselves out as husband and wife; (3) consent to the marriage; (4) cohabitate; and (5) have the reputation in the community as being married. See Colo.Rev.Stat. section 14-2-104; In re J.M.H., 143 P.3d 1116 (Colo. App. 2006).  Most states that allow informal marriage have similar requirements.  Notice there is no time element specified, nor is there any requirement that there be children  of the marriage.

Spouses in common law marriages have the same rights and obligations as spouses who have entered into formal marriages.  There is no such thing in any of the United States as “common law divorce.”  A common law marriage must be dissolved in the same manner as any other marriage, i.e., by annulment, divorce or death.

Parties to an informal marriage don’t have to file any documents in most states, until they come up against a specific need to prove their marriage.  An affidavit or notarized declaration may work in many states.

Things can become complicated when a common-law couple moves to a non-common-law state.   The Full Faith and Credit Clause of the United Sates Constitution theoretically protects such couples:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

That’s part of Article IV, section of the Constitution. On its face, it would seem to require as a constitutional matter recognition that a marriage valid in the state where it was contracted is valid in every other state.   But the Supreme Couurt has applied a “public policy exception” to the Full Faith and Credit Clause.  Thus, a state may determine whether recognition of an act under  another’s law “would contravene [its own] policies or interests,” giving “due regard to the duties, obligations, rights and convenience of [its own] citizens.”  Conceivably there may be circumstances where a common law marriage in one state is not recognized in another state.

Implications for Genealogists

Genealogical researchers cannot assume that the absence of any record of a marriage points for or against a common law marriage. The facts of the situation must be known as well as the law of the particular jurisdiction at the time of the marriage.  As Miester v. Moore illustrated, determining whether or not there was a valid marriage may become important  in tracing property and may be a factor in certain social contexts.   It’s another good reason not to just gather names, but to also understand the stories behind the names.

I have given an overview here of “common law” marriage in the United States. I hope our friends in Canada, Australia, New Zealand and the UK can enlighten us about formal/informal marriage in their countries.

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I Try to Kiss & Make Up with Caddo’s Clerk

June 22, 2009 Craig Uncategorized

Awhile ago, in a fit of technologically self-righteous pique, I vented my spleen over the process to access Caddo Parish, Louisiana, records online.  Perhaps I was too harsh.

Less than a week ago, I sent to Caddo Parish by snail mail a request for some certified copies of certain records.  Today, I have the records in my hands and have commenced analysis of them.  Amazingly excellent service!  Hats off to the folks in the Marriage Unit of the Caddo Clerk’s office!  Thank you!

hat

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Los Angeles County Record Request Requirements–Just Quirky? Or Unconstitutional?

May 2, 2009 Craig Uncategorized

I was alerted to this issue by a commenter on the Find-A-Grave California Discussion Forum.

If you go in person to the main office of the Los Angeles County Registrar-Recorder in Norwalk, California, and ask to view their birth, death, or marriage records, you will be required to sign a form similar to the one below (the example is for birth records, but the ones for death and marriage records contain the exact same provisions)

Los Angeles County Application to Examine Records

Los Angeles County Application to Examine Records

(click image to enlarge)

Frankly, I don’t understand most of what’s here in the section after “Please read and sign the following”.

The first item is somewhat clear, but I wonder why L.A. County wants researchers to sign it?  What effect, other than a potentially chilling one, would this have on a researcher’s ability to characterize, analyze, or describe data contained in the records?

The second item is extremely confusing.  What is meant by “any technical descriptions of the birth or death record indices”?  What are the descriptions provided by the State Department of Health Services and how would a researcher know if they are “consistent” with whatever?

I might understand that item #3 is designed to discourage commercial use of the information (a common, but  dubious governmental objective).  What, however, is meant by the phrase “otherwise transfer”?  Does that mean if I have received certain information from L.A. County’s records, I can’t tell you what it is?

Item #4 is the only one that makes any sense.

The most objectionable requirement is the fifth one, that the researcher “not post information from the [records] on the Internet.”  There is no statutory basis for this requirement that I could find in California law. Furthermore, even if
there is a statute permitting the county to impose this requirement, it’s likely unconstitutional as a violation of the First Amendment’s guarantees of free speech and free press.  It serves no compelling governmental interest sufficient to overcome an individual’s constitutional rights.  And how would the county enforce it?  Could they get an injunction blocking proposed publication on the Internet? Or a court order requiring a researcher to remove the information from the Internet?  Not likely.

Note that a researcher could broadcast the information on television or radio, or post it on a billboard in downtown Los Angeles, or publish it on the front page of the Los Angeles Times, or even email it to a million people.  You just  can’t post it on the Internet!

What makes this form all the more amazing is that persons ordering records by mail are not required to sign any such similar form!  At this link is the document needed to order records by mail from Los Angeles County.

To use the words we lawyers love to use, the Los Angeles County form contains provisions which are vague and overbroad, arbitrary and capricious, and an unlawful infringement on the right to free expression under the U.S. and
California Constitutions.  I would not sign such a form.

For this bit of foolishness, Los Angeles County and its Registrar-Recorder, Dean C. Logan, have earned a place in the Public Records Hall of Shame.  Let’s hope they redeem themselves soon!

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Louisiana Public Records Online Access: Good and Ugly

May 1, 2009 Craig Uncategorized

I’ve written favorably about the vital records index at the Louisiana State Archives.  It’s easy to use to look up information and it’s set up to make ordering certified copies by snail mail easy.  Unlike Texas, Louisiana does not have an on-line ordering capability run by the state.  But since they make everything else so easy, I barely noticed.

Now the individual parishes are quite another story.   Two parishes in which I do a lot of research are Caddo and De Soto.   Here’s the unvarnished truth about their processes:

CADDO–The Caddo Clerk of Court has an easy-to-find website at www.caddoclerk.com.   On the site there is a marriage index which goes back to 1919.   I have find it to be very useful from a substantive point  of view.  My gripe with it is that it doesn’t work well with my Firefox browser.  It works fine with IE 6 and IE 7.

Copies of the marriage licenses may be ordered from as early as 1838.  The cost of a certified copy is $2.50; an uncertified copy is just $0.50!

Suppose, however, you want to view something other than the marriage index.  Perhaps you’re interested  in property records, or even in seeing the images of the marriage licenses (which are available back to 1838).  All of these things are accessible via the Internet.  The ugly part is that one must haqve a remote access account with the county.  To get such an account, you must sign two documents, an application and a contract.  You are charged a $100.00 set up fee and then $30.00 per month for unlimited access.

DE SOTO–The situation in De Soto Parish (much smaller than Caddo) is even worse.  First, the oldest records online are from 1958.  Most date from 1991.  But the fees are astronomical.  There is a one-time setup fee of $150.00.  Then, if you just want to search indices, that’ll cost $50.00 per month.  To actually view the records, you’ll have to fork over $100.00 per month!

This is a shame.  But De Soto’s clerk explains on his website:

No tax money is provided for the operation of the office except for residence, utilities, and some  modifications. The fees collected for recordings, certified copies, and services rendered in  connection with civil, probate, and criminal proceedings are established by statute.    All salaries  and expenses of the office are paid out of the fees. This makes the Clerk of Court’s office entirely self-supporting.

So there you have it!

I’m certainly not one who favors operating with no reimbursement for costs.  But, please, the maintenance of these records is a public function and it ought to be funded that way.  If you want to charge a higher fee for out-of-state
requests, that’s one thing. But to provide no public funding for a core governmental function is wrong.  It puts the  records at risk and ultimately may have dire consequences for the public.  It’s time for Louisiana to step up and pick up this duty.

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Insomnia–The Genealogist’s Friend

May 1, 2009 Craig Uncategorized

A few nights ago, I was having difficulty falling asleep.   Rather than fight the feeling, I thought I’d just get up and cruise the Internet for a little while.

I went first to footnote.com and noticed that their Texas death certificate collection is now about 50% complete.  So I just typed in the name Manson to see what would come up.  There were 55 Mansons in the database.  One I had not seen before was a Janice Manson who died in 1945 in Kerrville, Texas.

Death certificate for Janice Manson. Image from Footnote.com

Death certificate for Janice Manson. Image from Footnote.com

I clicked on the image for Janice Manson’s death certificate.  I learned from the death certificate that she died at the state sanatorium in Kerrville from tuberculosis.  I also learned that she had lived in Galveston.  That set a tiny alarm bell off in my head, because my father’s family is from South Texas.  Then I learned from the death certificate that Janice Manson’s father’s name was George Felder.   That set another little buzz off in my head.

Felder . . . hmm. . .  Felder,   Helder.  I went to my RootsMagic database and found the name Helder.  Janice Helder.  She’s in the database as the second wife of my grandfather Quentin V.H. Manson.  The source of that information was a transcription of the  Aransas County, Texas, marriage records.  I have found misspellings in that transcription before.

So now I have a death certificate for Janice Felder Manson and a record in my own database of a Janice Helder Manson.  Are they the same person or not?

Sometime ago, I had asked my father about Janice Helder.  He knew nothing about her.  The Aransas County marriage records say that she and Quentin Manson were married in August 1942.  I know that at some point between 1941 and 1945, my grandfather was in the Army, stationed at Camp Wallace in Galveston County.  He played clarinet and keyboards in the camp band.

I went to look up the Galveston city directory in the Ancestry.com “1940 census substitute.” And there, in 1941,  living at 2809 Avenue R, in Galveston, is Quentin (spelled “Quinton” as it often was before the mid-1950s) Manson whose occupation is musician.

I’m satisfied that that passes the Genealogical Proof Standard.

I slept well that night.

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FamilySearch Adds Midwestern Records

December 18, 2008 Craig Uncategorized

FamilySearch Record Search has added marriage records for Cook County, Illinois. The collection is currently what FamilySearch calls an “early access collection,” meaning that the collection is accessible though not yet entirely complete. What’s there now are records from 1900-1920. The entire collection ulitmately will go back to 1871.

[H/T to Tom Kemp at the GenealogyBank blog].

And while we’re talking about FamilySearch, today they also added records of the Catholic Diocese of Toledo, Ohio, covering the period 1796 to 2004.  These records have images, but they are not indexed.

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An Indirect Lead to The Elusive Sarah Gilbert?

April 19, 2008 Craig Uncategorized

In the last post, I mention Ancestry.com’s excellent collection entitled, “Missouri Marriages 1805-2002.” As I tried it out, I may have come across an indirect lead to my elusive ancestor, Sarah Gilbert.

The only matters of record that I have ever found concerning Sarah Gilbert are her 1867 marriage to Ezekiel Johnson in Clay County, Missouri, and her residence with her husband and children in Kansas City on the 1880 census. Other than those things, Sarah Gilbert is a phantom. There is no one alive today who knew her or saw her. There are not even any hearsay stories about her, except the persistent and unsupported rumor that she was an Indian. That’s it; that’s all.

Based on the fact that she seems to have disappeared after the 1880 census, I have surmised that she may have died sometime after 1880. No children appear to have been born to her after 1880.
Today, as I checked out the new Missouri marriages collection on Ancestry.com, I came across an 1885 marriage in Jackson County (Kansas City) between Ezekiel Johnson and one Rena Neal. If this is the same Ezekiel Johnson who married Sarah Gilbert, this may lend some credence to the notion that Sarah Gilbert died sometime after 1880. More investigation need on this, but it could be an indirect lead to Sarah Gilbert.

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Missouri Marriages 1805-2002 at Ancestry.com

April 19, 2008 Craig Uncategorized

Ancestry.com has recently added a collection called “Missouri Marriages 1805-2002.” Frequently, Ancestry’s state collections have seemed to promise more than they deliver–being limited to just a few counties or even a few years though the title implies many more counties or years.

But this collection seems to be the real deal. Easily searchable, it has many, many, actual images. And it seems to include the excellent collection of marriage records from Jackson County. Indeed, I found one record on this site that’s not in the Jackson County collection. So, kudos to Ancestry for this outstanding addition!

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