Performing Religious Marriages

by Richard R. Hammar

Parishioners occasionally ask their pastor to perform a “religious” marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. Consider the following examples:

  • One or both spouses are undocumented aliens.
  • Compliance with one or more of the civil law requirements is not possible. For example, a couple fails to obtain a license within the time prescribed by law, or one of the spouses is underage.
  • A pastor is asked to perform a marriage in another state in which nonresident pastors are not authorized to perform marriages.
  • A divorced spouse will lose alimony from her former husband if she remarries.
  • A divorced spouse will lose insurance or other benefits in the event of remarriage.
  • A couple believes their Social Security retirement benefits will be higher if they are not legally married.
  • A couple regards the civil law requirements for marriage as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony.

Whatever the reason, pastors need to understand there are several potential legal and tax consequences associated with a “religious” marriage that is not in compliance with state law. A recent case in Tennessee illustrates this point.

A couple had a “religious” marriage in their church, presided over by a church elder. However, the couple never obtained a marriage license. Instead, they testified that they obtained a “certificate” from their church documenting that they had been married. One spouse was injured in a traffic accident and her “husband” sued the other driver for “loss of consortium.” The court ruled that only a married spouse can maintain a loss of consortium claim based on the death or incapacity of the other spouse. It concluded:

“As far as the law of Tennessee is concerned, without a valid license, the plaintiffs do not have a valid marriage. The Tennessee Code section on marriage ‘licenses and permits’ states that, ‘before being joined in marriage, the parties shall present to the minister or officer a license under the hand of a county clerk in this state, directed to such minister or officer, authorizing the solemnization of a marriage between the parties. Such license shall be valid for thirty (30) days from its issuance by the clerk.’ Multiple other code provisions reinforce this notion that obtaining a valid license from the county clerk is a necessary step toward a valid marriage, as it protects the State against recognizing marriages that are contrary to the public interest. … Plainly, in order to have a valid, recognized marriage under Tennessee law, there must be a marriage license. Here, there is no license, so there is no marriage that the state of Tennessee will recognize.”

The couple claimed that, even if they did not have a marriage license, they believed themselves to be married, they had a marriage ceremony, they obtained a “certificate” of marriage from their church, and they had cohabited for more than 5 years. The court was not impressed:

“The plaintiffs believe in the validity of their marriage, but they affirmatively do not recognize the authority of the state of Tennessee to sanction or regulate the validity of their marriage. Therefore, reasonably, the plaintiffs can be viewed as ‘believing in the validity of their marriage,’ but also ‘knowingly living together in an unmarried state.’ The couple’s decision not to obtain a license was a knowing choice; their deposition testimony showed that they had both been married and divorced before. … This plainly shows they are familiar with the formalities of marriage, including licensing.”

The court stressed that this is not a case in which the parties attempted to obtain a license and there was a technical glitch, such that, in fairness, the marriage should be recognized. Rather, here the plaintiffs made the conscious choice to forego a basic requirement of a valid marriage in Tennessee. That is, of course, their choice, but nothing in fairness and equity dictates that the court should now — when it suits the couple’s financial objectives to have a government-sanctioned marriage — recognize their marriage as valid for purposes of this case.

There are many other possible legal and tax consequences associated with a “religious” marriage that is not in compliance with state law, including those listed below. Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.

  • As this case illustrates, a religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on “loss of consortium” for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • If a couple is “considered married” for the whole year, they can file a joint return or separate returns. A couple is “considered married” for the whole year if on the last day of the tax year they were living together in a common law marriage recognized in the state where they live or in the state where the common law marriage began. Only nine states currently recognize common law marriages, and in many of these states only some common law marriages are recognized.
  • An unmarried person may be able to file as head of household if certain conditions are met
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple cannot claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • If an employer provides health benefits to employees and their “domestic partners,” the amount paid by the employer is generally a tax-free fringe benefit to employees but is taxable to unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a “common law marriage” recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner’s estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner’s estate.
  • If an unmarried couple ends their relationship, there generally is no right of alimony or support from one former partner to the other. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called “palimony”) from one former partner to the other. Conditions apply.

Pastors should not consider performing “religious marriages” without carefully considering these possible ramifications. Legal counsel can assist pastors in making an informed decision.

This article is reprinted with permission from Church Law & Tax Report © 2010 Christianity Today International.