This is an official copy of the following document.

OAG 96-46

December 26, 1996

Subject: Marriage Law - Repeal of Licensing Requirements for Ministers - Filling Out Marriage License and Clerk's Duty

Written by: Thomas R. Emerson

Requested by: Senator Nick Kafoglis

Syllabus: With repeal of KRS 402.060, which dealt in part with licensing requirements for ministers, the General Assembly has by implication repealed all references and requirements in KRS Chapter 402 pertaining to the licensing of ministers. Until new forms are available county clerk can fulfill required duties by marking “not applicable” in any space calling for information pertaining to minister's license to perform marriages.

Statutes construed: KRS 402.060, KRS 402.100, KRS 402.110, KRS 402.990(10)

Opinion of the Attorney General

This is in response to a recent letter concerning the 1996 amendments to the Kentucky Marriage Law (KRS Chapter 402).

Senate Bill 68 (1996 Acts, Chapter 205) in part repealed KRS 402.060 which had set forth the requirements relative to the licensing and bonding of ministers. Even though ministers now do not have to obtain licenses and post bond, KRS 402.100, dealing with the marriage license and the marriage certificate, still refers to a person licensed to perform marriages and requires the furnishing of the name of the county where the minister's license to perform marriages was issued.

In addition, KRS 402.110 requires that the marriage license be completely filled out and KRS 402.990(10) imposes a penalty on the clerk for failure to follow the provisions of KRS 402.110.

In view of the repeal of KRS 402.060 all references to the licensing and bonding of ministers have been repealed and are no longer applicable. See, for example, the November 1996 revision of our booklet entitled County Clerks' Guide to Kentucky Marriage Law at pages 10-11. A copy of that booklet is enclosed.

The court, in Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608, 612 (1965), said in part as follows:

We acknowledge and re-affirm the familiar policy of law that looks with disfavor on repeals and amendments by implication and recognizes them only when they are clear and when it is necessary in order to carry out the obvious intent of the legislature.

It is obvious by the repeal of KRS 402.060 that the General Assembly in 1996 intended to remove all requirements relative to the licensing of ministers. While KRS 402.100 still refers to a person licensed to perform marriages and requires the furnishing of the name of the county where the minister's license to perform marriages was issued, these provisions are in conflict with the expressed intent of the General Assembly that there be no licensing requirements for ministers.

Other cases recognizing and applying the concept of repeal by implication include Smith v. Louis Berkman Co., 894 F.Supp. 1084, 1090 (W.D. Ky. 1995) and Gallenstein v. United States, 975 F.2d 286, 291 (6th Cir. 1992).

It is our understanding that the Department for Libraries and Archives is at this time revising the form relative to marriage licenses and marriage certificates. Until the new forms are available the clerk could simply mark “not applicable” in any space calling for information pertaining to a minister's license to perform marriages.

Thus in view of the repeal of KRS 402.060, which dealt in part with licensing requirements for ministers, the General Assembly has by implication repealed all references and requirements in KRS Chapter 402 pertaining to the licensing of ministers. Until new forms are available, a county clerk can fulfill his or her duty to insure that the marriage license is completely filled out by marking “not applicable” in any space calling for information pertaining to a minister's license to perform marriages.

A. B. CHANDLER III

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General