Inman, Doyle B.

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University of Kentucky

Kentucky Law JournalVolume 35 | Issue 3 Article 61947Validity of Proxy Marriage in KentuckyDoyle B. InmanUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationInman, Doyle B. (1947) "Validity of Proxy Marriage in Kentucky," Kentucky Law Journal: Vol. 35 : Iss. 3 , Article 6.Available at: https://uknowledge.uky.edu/klj/vol35/iss3/6STUDENT NOTESVALIDITY OF PROXY MARRIAGE IN KENTUCKYProxy marriage is properly classified as a type of formal contractcontemplating a ceremony wherein one of the parties is representedthrough an agent duly authorized by a formal document to enter intothe contract in behalf of his principal.' All statutory formalities suchas licensing, serological tests, solemnization, etc., are complied with,the only varying feature being the absence of one and sometimesboth of the parties.Proxy marriage was formerly of only theoretical concern and itsonly application in the more civilized parts of the world was the rareoccasions when it was employed by members of royalty.' The firstWorld War and subsequent immigration revived interest in the sub-ject in the United States, and it became a practical matter and a vex-ing one, for there was little legislation or precedent, if any, to serveas a guide.That the problem is still in very much the same condition, canbe gathered from the complaints now being heard from the variousgovernmental agencies, particularly the Veterans Administration,*who have the unenviable task of deciding the validity of such mar-riages from the dearth of tangible and conclusive legislation andadjudication on the subject.The writer has found that of all the states, only Minnesota' hasmade any provision by statute for proxy marriage. The remainingtwo states where proxy marriage has been allowed, Kansas, and NewISee, LoLordo, Proxy And Common Law Marriages, Nov. 1943,I NATIONAL ASSOCIATION OF LEGAL AID ORGANIZATIONS BRIEF CASE 1, 2.2 MADDEN, HANDBOOK OF THE LAW ON PERSONS AND DOMESTIC RE-LATIONS (1931) 63.See, The Lexington Herald, April 15, 1946, P.+8, Col. 2.'MINN. STAT. (1941, 1945 Supp.) 517.09; (The condition was at-tached, however, that the woman must be pregnant. This statutewas limited to the duration of the war and 6 months.)'Howery, Marriage by Proxy and Other Informal Marriages(1944-45) 13 KAN. CITY L. REV. 48, 78: "Kansas is one of the statesthat has definitely ruled that statutory marriages by proxy are valid.The office of the Attorney General has handed down a favorableruling as to the validity of such marriages. In addition, severalmarriages by proxy have actually taken place in this state and itseems that in reliance upon the ruling of the Attorney General andpublic opinion in general they will be upheld by the courts of thisstate. There is no difficulty in one party obtaining a license and nopreliminary residence requirements are exacted. The marriage maybe performed by proxy before a probate judge, justice of the peaceor clergyman."STUDENT NoTESMexico,' do so by interpreting statutes of some years standing andnot because of any express statutory enactment to that effect.Theoretically, from the standpoint of agency and contract, aproxy marriage can validly take place. In an article on this subjectit is said: "If as these courts maintain, a marriage contract is purelya civil contract, governed by the same principles of formulation, thenit is difficult to escape from the conclusion that a marriage may becontracted by agency. Even the principle that an agent may not doacts of a peculiarly personal nature for his principal would seem tomake no difference because the mere making of the contract involvesnothing of such a nature; it is only the status which results from thecontract which is peculiarly personal . . .Of course in those stateswhere the personal presence of the principal is required, expressly orimpliedly, by statute, no such question can arise."7 It is only thepractical aspects that render such a marriage invalid, as, for instance,the statutory formalities which require the personal appearance ofboth parties to secure a license, the provisions in regard to serologicalexaminations and physical examinations, and the requirements as topersonal appearance at the ceremony.On the basis of Kentucky Revised Statutes, sec. 402.050, theAttorney General of Kentucky has given his opinion that proxymarriage is invalid in this state. The applicable sub-section reads:"At least two persons in addition to the partiesand the person solemnizing the marriage shall be presentat every marriage." (Italics supplied.)Though the reasons for the invalidity were not given it is ap-parent that the italicized words were interpreted as requiring thepersonal presence of the parties to the marriage at the ceremony,hence entering the contract of marriage by proxy would not be inaccordance with the statutory provision.That this interpretation is conclusive is open to doubt. Anotherinterpretation, neither extreme nor inharmonious with the statute, isthat the word parties can just as well mean the person of the proxyand the other interested person, for the proxy marriage does not con-template a ceremony lacking in parties. As has been said, "If therule of agency is applied to proxies in the general sense, however,there is no reason for not interpreting a proxy to be the person him-self. What one does by a proxy or agent, he does himself. This isone of the oldest maxims of the law in general."'  The AttorneyGeneral is in the position of contending that the statute provides that'Howery, Marriage by Proxy and Other Informal Marriages(1944-45) 13 KAN. CITY L. REV. 48, 85: "An opinion by the AttorneyGeneral indicates that a valid statutory marriage by proxy is withinthe Statutes of New Mexico."7 Note (1931) 16 IOWA L. REv. 534, 537.'Howery, Marriage by Proxy and Other Informal Marriages(1944-45) 13 KAN. CITY L. REV. 48, 67.KENTUCKY LAW JOURNALthe personal presence of the parties is an absolute requisite, andnothing short of strict compliance will suffice to ensure the validityof the marriage. That this view is all a matter of interpretation isevident, and there is no logical and legal reason why a proxy mar-riage could not take place validly if this were the only objection.One can think of many hypothetical cases that would seriously em-barrass the court and the question is posed whether the court woulddeclare a proxy marriage invalid in a situation where all expressstatutory formalities have been met and where there are childrenand war insurance ptyments involved. It is one thing to render anopinion where the result would be preventive and no actual problemis faced, and an entirely different thing where such a belief would,if applied to an actual problem, work a great social injustice.Another section of the statute which must be considered inreaching a conclusion is Kentucky Revised Statutes, sec. 402.120:"(1) Each person making application for amarriage license shall, at any time within 15 days prior tothe application, be examined by a physician authorized topractice in Kentucky as to the existence or nonexistenceof any stage of syphilis infection that is or is likely tobecome communicable."(2) No county clerk shall issue a marriagelicense to any person who has failed to present and filewith him either a medical certificate indicating that theexamination required by this section has been made, oran order from a court of proper jurisdiction directing himto issue the marriage license."Another pertinent section, Kentucky Revised Statutes, sec.402-130, says:"The medical examination required by KRS402.120 shall include a complete history, such physicalexamination as will reveal any existing clinical evidenceof a syphilis infection, and a laboratory test or tests. Alllaboratory tests required by this chapter shall be madeby a laboratory approved by the State Commissioner oiHealth, or by the laboratory of the State Department ofHealth. . . The medical certificate shall be made on aform prescribed by the commissioner of health."Unlike the section of the statute dealt with in a previous part ofthis note, the immediate sections referred to above are capable of butone interpretation, and it is difficult to conceive that a proxy mar-riage could take place and yet observe all the formalities just men-tioned. If the party were to comply with these provisions, the in-stances in which he could not be present would be rare.In the case of service men, some states' in lieu of the prescribedform and procedure regarding pre-marital examinations, acceptcertificates provided by the United States Army or Navy, in whichevent an absent person could comply with the examination require-' California is an example of a state that does so. (Laws 1943,c. 214.)STUDENT NOTES 231ments. These certificates are not accepted in Kentucky, so such aprocedure cannot be used to secure the license essential to a validceremony. The one possible exception would be in the case of apregnant woman who can secure a court order to compel the issu-ance of a license. Once a license has been obtained we are back tothe conclusion that a valid proxy marriage could take place.It would seem to follow from what has been said that proxymarriage is invalid in Kentucky, notwithstanding Kentucky RevisedStatutes, sec. 402.050, which should be interpreted in favor of proxymarriage, but because of Kentucky Revised Statutes, sec. 402.120 andsec. 402.130, which make it practically impossible to secure a licensewithout the personal appearance necessary for a physical exami-nation.The conclusion is that for practical, rather than theoreticalreasons, a valid proxy marriage could not occur in Kentucky.DOYLE B. INMAN

Validity of Proxy Marriage in Kentucky

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