Does Texas require a marriage license?

As  divorce attorneys, we are asked if a person’s marriage is valid because they believe that their marriage was not based on a valid license or a qualified person to perform the marriage.

A license is required in Texas in order for people to be legally married.  If a marriage ceremony is not conducted before 90 days after the license is issued, the marriage license will be expired.

Who can conduct our marriage?

Under section 2.202 of the Texas Family Code,  only certain people may conduct the marriage ceremony as follows:

(a) The following persons are authorized to conduct a marriage ceremony:

(1) a licensed or ordained Christian minister or priest;

(2) a Jewish rabbi;

(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony;

(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts

of appeals, judge of the district, county, and probate courts, judge of the county courts at

law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice

or judge of those courts, justice of the peace, retired justice of the peace, judge of a

municipal court, retired judge of a municipal court, associate judge of a statutory probate

court, retired associate judge of a statutory probate court, associate judge of a county

court at law, retired associate judge of a county court at law, or judge or magistrate of a

federal court of this state; and

(5) a retired judge or magistrate of a federal court of this state.

(b) For the purposes of Subsection (a)(4), a retired judge or justice is a former judge or justice who is vested in the Judicial Retirement System of Texas Plan One or the Judicial Retirement System of Texas Plan Two or who has an aggregate of at least 12 years of service as judge or justice of any type listed in Subsection (a)(4).

(b–1) For the purposes of Subsection (a)(5), a retired judge or magistrate is a former judge or magistrate of a federal court of this state who is fully vested in the Federal Employees Retirement System under 28 U.S.C. Section 371 or 377.

(c) Except as provided by Subsection (d), a person commits an offense if the person knowingly conducts a marriage ceremony without authorization under this section. An offense under this subsection is a Class A misdemeanor.

(d) A person commits an offense if the person knowingly conducts a marriage ceremony of a minor whose marriage is prohibited by law or of a person who by marrying commits an offense under Section 25.01, Penal Code. An offense under this subsection is a felony of the third degree.

The Texas Attorney General has issued opinions on this matter.

The Texas attorney general issued an opinion that this section does not authorize a retired federal judge to conduct a marriage ceremony in Texas because retired federal judges are not among the retired judges listed in this section. Tex. Att’y. Gen. Op. No. GA–0948 (2012). But in 2013, subsection 2.002(a) was amended to add retired federal judges and magistrates to the list of judges who may perform marriages.

Certain court cases have also addressed the issue of the authority of a person conducting a marriage ceremony.

In Husband v. Pierce, 800 S.W.2d 661 (Tex. App.—Tyler 1990, orig. proceeding). If there was a reasonable appearance of authority by the person conducting the marriage ceremony, at least one party to the marriage participated in the ceremony in good faith, and that party has treated the marriage as valid, the marriage is valid whether or not it was conducted by a person authorized by this section even in the absence of a valid marriage license authorizing a marriage ceremony.

What is my marriage license has expired?

The Texas Family Code, section 2.203 addresses that issue.

(a) On receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter.

(b) A person may assent to marriage by the appearance of a proxy appointed in the affidavit authorized by Subchapter A if the person is:

(1) a member of the armed forces of the United States stationed in another country in support of combat or another military operation; and

(2) unable to attend the ceremony.

There is no specific requirement in Texas for the form of the marriage ceremony itself and no specific language that must be used.

Is there a waiting period after the getting the marriage license?

Under section 2.204 of the Texas Family Code,  there is a 72 hour waiting period with some exceptions.

(a) Except as provided by this section, a marriage ceremony may not take place during the 72-hour period immediately following the issuance of the marriage license.

(b) The 72-hour waiting period after issuance of a marriage license does not apply to an applicant

who:

(1) is a member of the armed forces of the United States and on active duty;

(2) is not a member of the armed forces of the United States but performs work for the United States    Department of Defense as a department employee or under a contract with the department;

(3) obtains a written waiver under Subsection (c); or

(4) completes a premarital education course described by Section 2.013, and who provides to the county clerk a premarital education course completion certificate indicating completion of the premarital education course not more than 1 year before the date the marriage license application is filed with the clerk.

Regardless of who you are going to marry or how soon you will be getting married, don’t make mistakes in not following the law and wind up in a divorce attorney’s office because unnecessary errors in following the law.