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Who can marry?To be eligible to marry in Massachusetts, both parties must:UNDER MASSACHUSETTS LAW -
1 G.L. ch. 207, § 25. How do we get a marriage license?Step one: Both people who are marrying must appear in person 6 at any city or town hall7 and fill out the application form called a notice of intention of marriage. (Note: Prior to January 28, 2005, in order to receive the marriage license from the town or city clerk, both parties needed to get a blood test, but this is no longer a part of the marriage licensing process.) This form requires the following information for each party:
Applicants must also complete a supplement to the notice of intention that is
sent to the state Registry of Vital Records and Statistics. The Registry may
make the information in this supplemental form, which includes each applicant’s
name, residence, and social security number (or reason for not
having a social security number), available to state and federal agencies for
purposes of child support enforcement or other purposes required by law.10
What do we need to bring with us when we apply?In order to receive a marriage license, both members of the couple must bring:
13G.L. ch. 207, § 33A. How do I change my surname?In addition to being a marriage application form, the Notice of Intention of Marriage form also operates as a legal name change document should you choose to change your name upon marriage. Questions 3A and 11A on the Notice of Intention ask for the surname you wish to use after marriage. By completing that question, your marriage certificate will identify you by your new last name. A certified copy of your marriage certificate will allow you to change you name with the Social Security Administration. If you intend to marry but are not sure you want to change your name, you can always change your name at a later point. The advantage to changing your name at the time of marriage is that it allows you to avoid the $165 fee for initiating a name change through the usual process at the probate court. The usual process is still available to you if you choose to wait. Also, you should be aware that the Passport Agency, citing the federal 1996 Defense of Marriage Act, is refusing to honor the name change on the marriage license and is requiring couples to go through Probate Court to have their names changed.What if a city or town clerk refuses to let us apply?City and town clerks are government employees whom we assume will carry out the law they are obligated to follow. If you and your partner are Massachusetts residents and encounter a clerk who refuses to issue a marriage license because you are a same-sex couple, please contact GLAD. If you and your partner are not Massachusetts residents, see the section on “Non-Massachusetts Residents”.What’s the story on the three-day waiting period?Massachusetts law requires couples to file the notice of intention of marriage at least three days before their wedding. 14 The license will not be issued until at least the third day from the filing of the notice.15 To be clear, in computing the three-day period, you do not count the day that you submitted the notice (i.e., if you submit the notice on Monday, the earliest you can receive your license is Thursday), but you do count Sundays and holidays.1614G.L. ch. 207, § 19. 15 G.L. ch. 207, § 28. 16G.L. ch. 207, § 19. Can I get married without waiting the requisite three days?It is possible to obtain a waiver of the three-day notice period from a Massachusetts District Court (also referred to as a municipal court) or Probate Court, but this process is not recommended if you are a non-Massachusetts resident or have an existing marriage (even if to the same person). Also, there is no guarantee that this waiver will enable you to marry one the same day. At some courts, it may take time to find an available judge to grant the waiver, and the actual processing of the requisite marriage documents (including the marriage application, court waiver, and marriage license) is time intensive, requiring the use manual typewriters by both clerk and court staff.Obtaining a waiver Both the District Court and the Probate Court “recommend” that couples follow steps 1-5 below, in order, to obtain a waiver. However, both courts will permit couples to start at step 2 but caution that this shortcut could result in disappointment if the court grants the waiver but the city or town clerk ultimately refuses to process your notice of intention to marry. Also, because the city and town clerks will need time to process your notice of intention, you can get the ball rolling by starting at the city or town clerk’s office and then proceeding to the courthouse. This “recommended” approach may shorten the time you have to wait when you arrive at the city or town clerk’s office with the court waiver in hand.
First, if you follow the courts’ “recommended” procedures, the entire process will require two trips to the clerk’s office and one trip to the courthouse. (If you start at Step 2, this shortcut will allow you to make one trip to the courthouse and one trip to the city or town clerk). Please understand that the waiver certificate from the court and the marriage license from the clerk are processed manually, using typewriters. Thus, the process may take longer than you anticipate. Second, if you or your partner are unsure of whether a clerk will allow you to marry (maybe because you have an existing marriage), it is advisable to simply wait the three days to avoid the court waiver process which may -- depending on the application process -- needlessly subject your application to a second level of review, or force you to pay $65 or $195 for a waiver that a city or town clerk refuses to process. 17 G. L. c. 207, §30. Who can perform the ceremony?There are three options: (1) in-state Justice of the Peace (JP) or clergy; (2) out-of-state clergy, only if special permission granted by the governor; and (3) a specially designated “Justice of the Peace for-a-day,” only if special permission granted by the governor.First, any willing in-state justice of the peace, minister, rabbi, priest, imam or other person authorized by a faith community that has filed information about the authorized persons with the state secretary’s office can solemnize a marriage in Massachusetts. 18 Justices of the Peace (JPs) can be found through www.findajp.com/findmass.htm. We do not know and cannot vouch for how friendly these folks will be. Regardless of their personal opinions, JPs are state officials whom we assume will carry out the law they are obligated to follow. If you and your partner are Massachusetts residents and encounter a JP who refuses to solemnize your marriage because you are a same-sex couple, GLAD recommends moving on to another officiant to perform your ceremony -- do not let a discriminatory JP stand in your way of your marriage. Please let us know about the discriminatory JP so we can respond appropriately. JPs cannot charge more than $75 for solemnizing a marriage in his or her home community or $125 for a ceremony elsewhere in Massachusetts. They cannot require any additional charge for travel, or for providing flowers, music a photographer, or a location for the ceremony. They may charge more for prenuptial counseling, rehearsals or other special requests, however, so long as the amount of these extras is given to the couple in writing at least 48 hours before the scheduled services. Additionally, if the justice of the peace is a municipal employee and the marriage is taking place at a municipal building during regular business hours, the fee can’t exceed the limits set by the municipality.19 You can ask at the clerk’s office about this information. Second, out-of-state clergy may perform a ceremony in Massachusetts if they receive authorization from the State. The clergy person needs to contact: Secretary of the Commonwealth Public Records DivisionThis can be done either before or after the wedding takes place, but authorization cannot be obtained earlier than four weeks before the wedding. The clergy person will receive an application and two certificates (a white one and a blue one), all of which must be filled out and returned. The Secretary’s office will send the correct certificate to the city or town hall where the license is obtained - the white one if it is returned before the wedding, or the blue one if it is returned after.20 Third, it is possible for a layperson (a non-minister or non-justice of the
peace, such as a friend or family member) to obtain special one-time permission from the Governor's office
to perform a particular marriage on a particular date in a particular city. This process requires
the prospective officiant to submit an application to the Governor's office at least six weeks before the wedding,
along with a registration fee of $25 payable to the Commonwealth of Massachusetts and a letter of reference written by someone other than the people to be married stating the high standard of character of the proposed officiant. Once these are submitted and approved, the proposed officiant will receive a Certificate of Solemnization from the Secretary of the Commonwealth, which must be turned in with the marriage certificate to the city/town hall that issued the marriage license after the ceremony has been performed. The Governor may revoke the officiant’s designation, but only for cause-- a.k.a. not for discriminatory reasons. For more information or to get a copy of the application, you can contact the Governor’s Appointments Office at (617) 725-4080, ext. 35339, or see www.sec.state.ma.us/pre/premar/marone.htm. If the wedding date approaches and you have not received permission, you may want to consider the other two options (outlined above) for having a marriage solemnized in Massachusetts. Do we need witnesses for the ceremony?Massachusetts law does not require that witnesses be present for a civil ceremony. If a member of the clergy is marrying you, however, you might want to ask whether religious doctrines require witnesses.Are there still efforts underway to stop same-sex couples from marrying in Massachusetts?Opponents of equality initiated several last minute legal maneuvers to block licenses from issuing on May 17, 2004, but those efforts were unsuccessful and the Goodridge decision was implemented as scheduled. It took many months, but finally all of those last ditch attempts to overturn or delay implementation of the Goodridge decision were defeated by GLAD in court.Although the Legislature narrowly approved a constitutional amendment proposal in March 2004 to define marriage as only between one man and one woman and to create civil unions for same-sex couples, that proposal was defeated in September 2005. Also, in September 2005, the Attorney General certified a citizen’s initiated constitutional amendment proposal that would define marriage as only between a man and a woman and, unlike the earlier amendment, would not automatically create civil unions. GLAD unsuccessfully tried to stop this amendment from going forward through a court case challenging its constitutionality. In order to become a constitutional amendment, this proposal had to be approved by two consecutive sessions of the Constitutional Convention, and then be approved by the voters in November 2008. It was approved by the legislature on January 2, 2007, but then was defeated on June 14, 2007, by a vote of 151 to 45.
Non-Massachusetts ResidentsCan I get married in Massachusetts if I live in another state?Massachusetts does not have a residency requirement for marriage, BUT one old, local law – dating from 1913 – says that non-residents may not marry in Massachusetts if their marriage would be expressly prohibited if contracted in their home state.21 Massachusetts Governor Romney revived this old law and used it as a basis for instructing clerks to deny marriage licenses to same-sex couples from all other states. Subsequently, a Massachusetts trial court judge, interpreting the SJC’s decision, determined that Rhode Island same-sex couples are able to marry in Massachusetts, without having to express an intent to reside in Massachusetts (see GLAD’s publication Marrying in Massachusetts: A Guide for Rhode Island Same-Sex Couples). In July 2007, the Massachusetts Department of Public Health determined that New Mexico same-sex couples are also entitled to marry in Massachusetts. If you reside in a state other than Massachusetts, Rhode Island or New Mexico, the only way you may marry in Massachusetts is if you express an intent to relocate to Massachusetts after the marriage. If you are not allowed to marry in Massachusetts and there is a reason you need to marry immediately, there is a more practical option to consider: Canada. Canada does not have a residency requirement and all its provinces and territories allow same-sex couples from the United States to marry there right now. For the reasons discussed in greater depth below, a Massachusetts marriage license issued to you by mistake or under false pretenses may cause your marriage to be questioned in ways that a Canadian marriage license would not. See our publication, What Do I Need to Know About Getting Married in Canada? 21G.L. ch. 207,§§ 11, 12. Can I get married in Massachusetts if I my partner resides in Massachusetts?For dual-state couples (where one of you lives in Massachusetts and the other does not), whether and how this statute will be applied to you depends on your plans after you marry. If the out-of-state partner intends to continue living in his or her home state, then the statute will pose an obstacle. If, however, the out-of-state partner intends to reside in Massachusetts after the marriage, then the marriage license should be issued without a problem. The out-of-state partner will likely have to provide proof of this intent, such as a new driver’s license, proof of in state employment, his or her name on a new lease or mortgage, utility bills, an application for a parking permit, etc.
How will the clerks determine whether I reside in Massachusetts?New marriage application forms require applicants to indicate that they either reside or intend to reside in Massachusetts. Evidence of residence may be satisfied by showing some type of document confirming your intentions. Alternatively, the clerk may (or may not) simply choose to rely upon your representations on the Notice of Intention. Please be aware that your signature on that document operates as a sworn affidavit signed under the pains and penalties of perjury.We do not know which clerks rely solely on the sworn statement and which require one (or possibly more) piece(s) of documentary evidence. The clerks have been instructed that documentary evidence of residency may include a utility bill; bank or credit card statement; telephone listing; current voter registration; employment or business address; driver’s license; automobile registration; copy of state or federal tax return; deed, purchase, or sale, or lease for residential property; or some other document that demonstrates where a person resides. If you believe that you are a Massachusetts resident (or intend to reside in Massachusetts following the marriage) but cannot satisfy the clerk that you do in fact qualify to marry, GLAD recommends moving on to another clerk’s office. If you believe the clerk is refusing to accept valid proof of residency because you are a same-sex couple, after you have had your marriage processed and solemnized elsewhere, please let GLAD know so that we can respond accordingly.
What if I am a resident of more than one state?Although the clerks will allow some latitude for you to select your own residence, GLAD recommends that you consult an attorney before selecting Massachusetts as your place of residence if you do not consider Massachusetts to be your primary place of residence. A person’s declaration of residency may have unintended adverse effects on his or her tax liability, immigration status, probation status, or ability to run for governor, for example. In fact, we have learned that the Massachusetts Department of Revenue will be looking closely at the tax obligations of those who claim Massachusetts residency. Moreover, if you elect to declare Massachusetts as your residence and you do not have a legally supportable basis for doing so, you may run the risk that your license will be challenged for fraud. As noted above, acquiring your license under false pretenses, even if done inadvertently, may cast a legal cloud over the validity of your marriage.
Should I pretend that I am a Massachusetts resident?Absolutely not. We know that proof of residency may be easy to acquire and that some clerks will rely on your statement without asking for documentary proof, but under no circumstances should you misrepresent your status as a resident of another state, if that is in fact the case. Acquiring your license under false pretenses may expose you to a fine of up to $100,22 but more importantly, it will cast a legal cloud over the validity of your marriage. When you return to your home state, you may well have greater difficulty proving the validity of your marriage, if (or when) you are forced to do so. Those who wish to deny the validity of your marriage (which may or may not include a government agency in your home state, your employer, or even hostile family members) may attack your marriage claiming that Massachusetts never should have issued you a license in the first place. Even though states should recognize marriage licenses validly issued and solemnized elsewhere, you will not have the benefit of this presumption if you obtain your license under false pretenses. Under every imaginable circumstance, a valid marriage license from Canada will be more valuable to you than a Massachusetts marriage license acquired by fraud.22 G.L. ch. 207, § 52.
What if I disclose that I am a resident of another state, and the clerk grants me a license anyway?Although some city and town clerks initially granted marriage licenses to same-sex couples from other states in light of the declaration in the Goodridge decision that same-sex couples should no longer be denied marriage rights by the government, those cities and towns have since suspended the issuance of marriage licenses to out-of-staters who indicate that they intend to live outside Massachusetts after the marriage, unless the couple resides in Rhode Island or New Mexico. Out-of-state couples, who married in Massachusetts in 2004 despite truthfully disclosing their intention not to reside in Massachusetts, should consult GLAD’s publication, Legal Issues for Non-Massachusetts Same-Sex Couples Who Married in Massachusetts, for the current status of their marriage after the Supreme Judicial Court’s March 2006 Cote-Whitacre decision. What if I do have plans to move to Massachusetts in the near future?Questions 6A and 14A on the Notice of Intention ask: “If not a Massachusetts resident, I intend to reside in: _____.” If you have a present intention to establish a new home or residence in Massachusetts in the near future and can satisfy the clerk that your intent to reside in Massachusetts is genuine, the clerk should grant you a marriage license. A clerk may satisfy himself or herself about where a person intends to reside by examining some type of confirmatory documentary proof or by accepting your sworn statement of intention. The clerks have been instructed that applicants can satisfy the “intends to reside” requirement even if a specific address or town has not been selected. For example, if you have been admitted to a Massachusetts school and you and your partner intend to reside in Massachusetts in the fall, the clerk should conclude that you intend to reside in Massachusetts. A vague intent to someday have a residence in Massachusetts is insufficient. If a clerk refuses to accept your sworn statement, you should try another clerk’s office and let GLAD know of the difficulty you encountered. On a cautionary note, your marriage may be subject to challenge if you indicate an intent to reside in Massachusetts, obtain a license on that basis, and never follow through on your stated intentions.
How do I become a Massachusetts resident?There is no hard and fast rule about how one becomes a Massachusetts resident. The Massachusetts Citizen Information Service states, “There is no formal procedure for establishing a legal residence in Massachusetts. Voter registration, automobile registration, a driver’s license, the appearance of a person’s name on a city or town street list, and rent, utility, mortgage or telephone bills normally provide tangible proof of residence. However, individual public or private agencies or institutions may have their own requirements for proof of residence.”23The bottom line is that for purposes of the marriage licensing statutes, the parties must reside here and intend to continue residing here indefinitely.
23www.state.ma.us/sec/cis/ciswel/weltomas.htm
What if I am a resident of another country?The Commonwealth has instructed clerks to apply the 1913 law (e.g., M.G.L. c. 207, §§11 and 12) to same-sex couples from other countries as well as same-sex couples from other states. Consequently, at the current time, same-sex couples from other countries, where same-sex couples are expressly prohibited from marrying there, cannot marry in Massachusetts. If you believe that your home country’s marriage laws do not expressly prohibit marriage for same-sex couples and a clerk will not issue you a marriage license, please contact GLAD.
Other Special CircumstancesCan I get married in Massachusetts if I have a Civil Union?Yes, so long as you intend to marry the same person with whom you already have a civil union. However, if you have a civil union with one person and wish to marry another person, GLAD recommends dissolving your civil union first, even if the clerk will allow you to marry.
If you plan to marry the same person:If you are contemplating marrying the same person with whom you have a civil union, GLAD sees no statutory impediment to doing so, as your civil union is not a marriage and your civil union did not give you an existing former spouse -- only a present one. 24 City and town clerks have been instructed to allow persons with civil unions to marry if they are otherwise qualified to marry in Massachusetts. Nonetheless, the clerks will require you to disclose on the Notice of Intention form whether you have a civil union, and if so, whether it has been dissolved. This information is being collected for statistical purposes only and should not affect whether you are eligible to marry. If you encounter difficulty obtaining a marriage license because of your civil union, please contact GLAD. Further, the legal effects of marrying your civil union spouse remains unclear, however, and may play out in different ways regarding when different types of spousal protections attach to your relationship.
If you plan to marry a different person:While the law on this is not clear, GLAD believes that if you have previously entered into a civil union with a person other than your intended spouse, you should not enter into a marriage in Massachusetts until that union is dissolved. Civil Unions are not marriages, but they do create a legal spousal relationship. For example, under Vermont law, a person with a civil union may not marry someone else25 and a married person may not enter into a civil union with someone else.26 Under Connecticut law, a person with a civil union or marriage may not enter into a civil union with someone else.27 Under New Hampshire law, a person with a marriage or civil union may not enter into a civil union with someone else. Massachusetts law, which states that a marriage contracted while either party has a former spouse living is void,28 was contemplating marriage and its resulting spousal relationship, not civil unions. This is where the lack of legal clarity comes from, but what seems clear is that if you had a civil union with a person other than the person you are seeking to marry, you have a former spouse, and thus your subsequent marriage to a different person would likely be void.Further, even if you were able to get a marriage license with a new partner, you would then be in the position of having two legal spouses, which could make you guilty of a crime,28 and would be a nightmare for the administration of marital protections, which assume the existence of only one legal spouse. Therefore, if you have previously joined in a civil union with a former partner, you should have a dissolution proceeding before you get married. In order to dissolve a civil union in Vermont, one of the parties must live there for one year and file for divorce. Connecticut, New Hampshire and New Jersey also have a residency requirement for dissolving a civil union (see our publications Connecticut Civil Unions or New Hampshire Civil Unions or contact Lambda Legal at 212-809-8585 for information about New Jersey). In Massachusetts, several Probate & Family Courts have granted a civil union dissolution,29 and while this is not a guarantee that other courts will reach the same result, we see no legal impediment to other courts doing so. It is important to note that while these cases are brought in equity and are not strictly divorce cases, it may be that in order to file for dissolution in Massachusetts, one party to a civil union must live here for one year. If you are unable to obtain a judicial dissolution, you may want to explore with your attorney other ways to protect yourself. Other methods exist that attempt to terminate the legal obligations of the civil union relationship, such as an agreement between the parties in which the individuals commit that they will not hold each other to those obligations. We have no idea how Massachusetts or any other state would view such an agreement. Even if you are able to put some of these protections in place, however, they do not sever the legal relationship of civil union, and will thus likely not affect your ability or inability to marry a subsequent partner. While such agreements may be able to limit the obligations your civil union created, they cannot undo the legal relationship itself. It is important to remember that this is still a developing legal landscape, and it will likely take a while to sort out all of these issues.
24 G.L. ch. 207, § 4. Can I get married in Massachusetts if I have a California or Oregon Domestic Partnership?Persons who are registered as domestic partners with the State of California (under A.B. 205) or the State of Oregon (under the Oregon Family Fairness Act) are arguably subject to the principles discussed above for civil unions. Thus, if you intend to marry the same person with whom you are registered in a California or Oregon Domestic Partnership, your legal status in California or Oregon would not prevent you from marrying in Massachusetts. However, if you have a California or Oregon Domestic Partnership with one person and wish to marry a different person, you should dissolve your domestic partnership first, even if a Massachusetts clerk may allow you to marry. Can I get married in Massachusetts if I have a Domestic Partnership?The term “domestic partnership” has no universal definition. The exact meaning of the term and the rights and responsibilities accorded to persons in a domestic partnership vary, sometimes dramatically, from jurisdiction to jurisdiction. The clerks in Massachusetts have been instructed to interpret the term “domestic partnership” to mean only “a relationship that states create to provide certain rights, obligations, and benefits to people who either cannot, or do not want to, marry.” At present, the only states that convey such partnerships are California, Maine, Oregon and Washington (Hawaii has a reciprocal beneficiaries program which is similar). On the Massachusetts marriage application form (i.e., the “Notice of Intention”), you will be asked whether you have a state-created domestic partnership, and if so, whether it has been dissolved. The Massachusetts clerk will not prevent you from marrying regardless of your answers to these questions, because the questions are being asked for statistical purposes only. However, if you intend to marry someone other than the person with whom you presently have a state or municipal domestic partnership, GLAD recommends that you formally dissolve the domestic partnership first. Further, if you marry the person with whom you have registered as domestic partners, your marriage may impact your domestic partnership status, so it is important to look into the law of the state or municipality where you previously registered.
What if I got married outside the United States (e.g., Canada, Spain, Belgium, the Netherlands, South Africa)?Getting married in a country that allows same-sex couples to marry means you are legally married no matter where you go. As a legal matter, Massachusetts should respect you as married for all purposes. As a result, there is no reason for an already validly married couple to marry again, and, in fact, there might be reasons not to, as explained below. There is also a procedure for registering your foreign marriage in Massachusetts, if you were a resident of Massachusetts when you married.31 Your city or town clerk can explain the procedure. If you are seeking to marry a different person in Massachusetts, you must obtain a divorce before you will be eligible to do so. Should you feel a need to try to marry the same person again in Massachusetts, nothing in the law expressly prevents you from doing so. As a practical matter, clerks may not process your application. The forms you must fill out to apply for a marriage license require you to state if you have previously been married, and if so, how that marriage ended. Consequently, the general practice of clerks has been not to allow already-married couples to complete the legal paperwork to renew their vows, regardless of any ceremony a couple might have. In addition, even if you receive a license and are married again in Massachusetts, it is uncertain what the legal effect of the latter marriage would be. There is no case law on this in Massachusetts, but a 1925 opinion of the Attorney General suggests that, while there is no impediment to the issuance of a marriage license to two people already married to one another, if the earlier marriage is valid, the subsequent marriage has no legal effect.32 Conversely, getting married again in Massachusetts could be used as evidence that you believed your original foreign marriage was not valid, and thus could affect how a court or other entity would apply the protections of marriage to your relationship during the time period between the two marriages. For example, if you were to divorce, a judge might question whether property you acquired as a couple after you married outside the United States, but before you married in Massachusetts, is actually property of the marriage subject to equitable division.
31G.L. c. 207, sec. 36
What if we got married in San Francisco, Multnomah County or another U.S. city?Given the unfortunate ruling of the California and Oregon Supreme Courts declaring the marriages of those same-sex couples who married in San Francisco or Multnomah County to be void, those couples should be able to marry in Massachusetts, provided they are residents or intended residents of Massachusetts, in light of the 1913 law. Couples in this situation should ask the Massachusetts clerk how they should complete the marriage application form (i.e., the “Notice of Intention”) in light of the fact that their prior marriage was dissolved by operation of law (and not by death, divorce or annulment). If you encounter difficulty obtaining a marriage license because of your prior, “voided” marriage, please contact GLAD. If you seek to marry in Massachusetts after having married (the same person) in other places in the United States (i.e., New Paltz33, NY; New Mexico), Massachusetts clerks may refuse to issue you a license because you are already married and no court has declared anything to the contrary. Although it is possible that a court might invalidate your marriage, unless or until that happens, you are married. Accordingly, you should not deny the existence of your previous marriage, even when seeking to marry in Massachusetts. If you deny the existence of your previous marriage, you may be seen as misrepresenting your marital status on forms you must sign under oath. Moreover, as a practical matter, denying the validity of the marriage compromises your ability to assert that previous marriage as a basis for securing marital rights and protections that you may well need. Massachusetts clerks have been instructed to deny licenses to persons who have prior marriages that have not yet been terminated. It is not clear, however, how Massachusetts clerks will implement that instruction for same-sex couples with existing marriages from other United States jurisdictions. If you desire to remarry the same person in Massachusetts, please contact GLAD to assist you with the process.
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