First, a couple very important question and you should take your time thinking about it before you answer.

1 -- Since when has it been unlawful to be married?

2 -- Why do you have an  unlawful  husband or wife?

Now a review of a few terms

Lawful: The principal distinction between the terms "lawful" and "legal" is that the former contemplates the substance of law, the latter the form of law.  To say of an act that it is "lawful" implies that it is authorized, sanctioned, or at any rate not forbidden, by law.  To say that it is "legal" implies that it is done or performed in accordance with the forms and usages of law, or in a technical manner.  Further, the word "lawful" more clearly implies an ethical [moral] content than does "legal".  (Black's 5th)

License: The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, or a tort.  (Black's 5th)

License is a tool of legal to circumnavigate (get around) the law.

Trespass: An unlawful interference with one's person, property, or rights.  (Black's 5th)

Equity: is a body of jurisprudence, or field of jurisdiciton, differing in its origin, theory and methods from the common law...  A system of jurisprudence collateral to, and in some respects independent of law.  (Black's 5th)

    In a society where people choose not to be responsible they still must choose, albeit ignorantly and/or silently, to function in a legal capacity, rather than Lawful.

    Those who choose to be responsible naturally choose, usually knowingly, to function in a Lawful capacity, not legal.

    Licenses are operations of legal contemplation. Licenses are tools for circumventing the Law.  When an entity gives license to someone for conducting an unlawful act, the issuer of the license is contracting to protect the licensee from retribution for the still unlawful act.

    As an aside, both systems (Common Law and equity) are referenced in the Constitution of the united States of America, Article 3, Section 2, Paragraph 1, & c.), although most people are subject to equity, having exchanged Rights at Law for government granted/revokable privileges/"civil rights" - or slavery by contract/consent.  'Legal' is the mere FORM of law, while 'lawful' contemplates the SUBSTANCE of law.  While one may CONTRACT into equity, he cannot be lawfully COMPELLED to abandon the Law.

    Licensing is the 'legal' method to circumvent the Law - licensees CONSENT to statutes which run COUNTER to Law, subjecting themselves VOLUNTARILY to equity jurisdiction.

    This is not to condemn equity itself or 'legal', but rather to illuminate the methodology (force and deception) used to draw people under its umbrella.

    So from where does the aspect of licensing marriage originate?

Marriage License: The license or permission granted by public authority to persons who intend to intermarry‚. (Black's 5th)

Intermarriage: See Miscegenation.  (Black's 5th)

Miscegenation: Mix of races; marriage between persons of different races. (Black's 5th)

    Now consider some other fundamental facets.  What is the purpose of most any contract?  Fundamentally, contracts are formed by parties, each of whom perceives that he will thereby gain.  In other words, to obtain something you did not have - a gain or a profit.  If you take a thingamajig for repair, you will obtain something you did not have - a fixed thingamajig and the repairman will obtain something he did not have - commonly a medium of exchange oft times called money. Your profit was from broken to fixed.  The repairman's profit was from no (or little) medium of exchange to more of it.  In marriages, what is usually the "profit"?  When you get married what might you not have at first, then later have?  Answer: children.

    Contracts are based on mutual consent, not force.  No one forced you to get the license (contract), there is no law or statute requiring it except the one condition, as mentioned hereabove - miscegenation.

    Now consider why the state is willing and eager to be a party to your contract.  The children of said contract are wards of the state.  You say NO, then why can they tell you how to care for their children? Whether it is where to school them, to give them dangerous shots, spank them or not, and on and on.

    Who do you want to have authority over your children?

    Are you considering getting a "Civil" divorce (from the state - getting out from under the authority of the state) and advancing to the front lines your "Ecclesiastical" union (marriage under God)?

    Are you considering not getting a "Civil" marriage (under authority of the state) in addition and in conflict with your Godly union or are you considering only a union under authority of God?  Choose ye (Joshua 24:15).

    When you and your spouse (or your intended spouse) stood before witnesses and professed your vows, WHO MARRIED YOU?  Most people say "the preacher".  Pardon me!!!  I thought your spouse married you and you married your spouse.  All the preacher did was conduct himself as a master of ceremonies (EMCEE or MC).  He only helped you make the process go smoothly during your moments of nervousness, or as in many cases, you REALLY were not ready (you probably did not know the information contained herein - why did/do you need a coach?).

    The EMCEE says "I now pronounce you man and wife" (or some such thing).  This utterance from him is not a consumating act, does not make the act official, has no meaning other than it is merely a pronouncement.  I can look to the sky and see clouds then say "I now pronounce the sky is cloudy".  Does that make it so, NO.  I merely pronounced what already was, I announced it.  The two people in marriage, by their expressed vows, before God and witnesses, made the act official.

    What if you and a person of opposite sex were the only people, whether as the only survivors of mass destruction or proverbially stranded on an island?  Would your expression to each other before God make you married?  Of course!  Ceremony, in and of itself does not a marriage make.

    The only requirements for the ceremony of the wedding are to express your intentions before “I AM”/Israel (the creator) and before witnesses.

    The elements of a marriage are to hold yourselves out to the world (public) as husband and wife, to live as husband and wife, to consumate the union (sexual intercourse).

    The following is an excerpt edited from a study and paper filed in Arkansas courts which should prove enlightening.  Remember, some of the local cites are Arkansas, but should, and often do, have a corollary to most, if not all, other republics in the union of the States of America.
 

    Two people not having a state issued marriage license, have no contract with the state, there is no nexus in equity with the state, and without such nexus a court of equity does not have subject matter jurisdiction.

    In the spirit of Alexander Hamilton, the principle which shall be assumed here is -- that the established rules of morality and justice are applicable to the state and its divisions as well as to Individuals; that the former as well as the latter are bound to keep their promises, to fulfill their engagements, to respect the Rights of others and to follow the Law.

    Without this, there is an end of all distinct ideas of right or wrong, justice or injustice in relation to Society or government.  Without this, there can be no such thing as Rights -- no such thing as Property or Liberty.  All the boasted advantages of a Constitution of Government vanish in air.  Every thing must float on the variable and vague opinions of the governing party of whomsoever composed.

    ACA 9-11-201 "All persons hereafter contracting‚ marriage in this state are required to first obtain a license‚ ..‚. "

Contract: An agreement between two or more [entities] ... .‚ Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation. (Black's 5th)

License: The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, or a tort.  (Black's 5th)

Lawful: The principal distinction between the terms "lawful" and "legal" is that the former contemplates the substance of law, the latter the form of law.  ... Further, the word "lawful" more clearly implies an ethical content than does "legal". (Black's 5th)

    Marriage under God is a three way contract between you, your spouse and God.  Marriage in the state is a three way contract between you, your spouse and the state.  This may well mean you have two (2) three way contracts.  And we all know Yahshua (Christ) said no man can serve two (2) masters (Matthew 6:24 & Luke 16:13). And in Joshua the example is set to serve either man (government) or God and Joshua chooses for him and his house to serve God.  What have you chosen?  What will you choose?

    Licensing is the 'legal' method to circumvent the Law - licensees CONSENTING to statutes which run COUNTER to Law, subjecting themselves VOLUNTARILY to equity jurisdiction.

    This is not to condemn equity itself, but rather the methodology (force and deception) used to draw people under its umbrella.

    We all know that a license does not make an act right or Lawful, it does not relieve a person from moral and just obligations. It merely signifies a general (though improper) condonation by the body politic or its representatives.

    Now the obvious question should be "what about marriage is unlawful".  For that, we need a historical study of the marriage license and the resultant definition, to wit:

Marriage License: The license or permission granted by public authority to persons who intend to intermarry‚. (Black's 5th)

Intermarriage: See Miscegenation.  (Black's 5th)

Miscegenation: Mix of races; marriage between persons of different races. (Black's 5th)

    In a historical study into the unlawfulness of marriage, it is significant to consider the origins of the institution of marriage and to understand that it is neccessary to understand that marriage is an institution created and ordained by the Lord God. For without the Lord God there would not be marriage.  By the same index, it is necessary to understand the restrictions of marriage.

    The unlawfulness of marriage is established by the Lord God in commandments to Israel and can be found in such passages as Ezra 10:10&11, 2 Corinthians 6:14-18, Deuteronomy 7:1-4, Joshua 23:12&13, Jeremiah 2:21&25 and more.  God commanded such, non-mixing, to preserve the seedlines, nations, and such is exactly what he said, regardless of our like or dislike for it. For thousands of years this commandment was known and understood by all, then circa 1860 in Pennsylvania the first marriage license was created and issued in Pennsylvania to quash the ostracizing of persons wanting to marry between the races.  The Pennsylvania legislature attempting to please a sector of their constituants, cleverly devised the marriage license as a means to circumvent the Law against marriage outside the racial (nation) family.  This beget the definition, supra.  Now, the Chief Counsel in the office of the Secretary of the Commonwealth of Pennsylvania has stated that "a marriage license under Pennsylvania law is directory only [as also is the case in Arkansas, see Wright v Vales, 1 Ark App 175 and DePotty v DePotty, 226 Ark 881].  Thus, in [Arkansas], a couple may be married with a license or they may contract a common law marriage" (letter dated August 16, 1985).  This reflects the dual rule system, discussed later herein.

    This raises the question "how did people get married prior to circa the 19th century?".   Obviously, they were married "LAWFULLY" not "legally", in substance and form, not simply form. Prior to the the 19th century no person could even get a license to marry.

    Michael C. Turpen, the Attorney General of Oklahoma, clearly stated "The essence of the common law marriage is that it exists outside, and is therefore not governed by, a state's statutes regarding the requirements for a valid marriage".  (also see Marvin v Marvin, 557 P. 2d 106)

    The Common Law is the Law.  Existential thinking and training cause people to believe that what is legal is the law, when in fact it at best can only be the form of law not the substance . The Common Law is the Law.  Existential thinking and [false] training cause people to believe that what is legal is the law, when in fact it at best can only be the form of law not the substance.  Many existential thinking people might say "I do not go in for that Common Law stuff, if I do not do it legally I will not do it".  The mere expression of this statement is clear evidence of incomplete historical training/learning, quite existential (now is the only time, yesterday did not happen, tomorrow is not here, only what is now matters without consideration for how you got to now), not knowing that the Law is the foundation, substance and form, while legal is merely, at best only form without substance and extending from law.  Not knowing that the Law always was and always will be, while legal is fleeting (existential).

    The Law, the Common Law, is the rule of decision and legal appears to have the form of the rule of decision.  Legal may often parallel Common Law like parallel train tracks, but never could legal have the substance of Law and therefore never can legal extinguish the Law. The best legal can do is supplant the Law in specific types of cases or circumstances.

    A people thereafter must choose, knowingly or unknowingly, consciously or unconsciously, to follow and/or adopt Law or legal, apparently parallel rules of decision. It may even be that a people or person would change rules, for any variety of reasons.

    While many magistrates, chancellors, and the like in Arkansas refuse to recognize the Law, the Arkansas legislature rightfully recognizes the Law and the LAWFULNESS of Common Law marriages:

ACA 1-2-119  "The Common Law ... shall be the rule of decision in this state unless altered or repealed by the general assembly of this state."

ACA 9-11-215 (b) "It shall be lawful for religious societies who reject formal ceremonies to join together in marriage persons who are members of the society, according to the forms, cu‚stoms, or rites of the society to which they belong"

 "Any marriage regularly made according to the Common Law, without observing the statute regulations, would still be a valid marriage.  While this doctrine was announced before many of the statutory regulations safeguarding marriage, ... it is still the rule‚, for there is no provision in the law [statute] that the failure of the parties and others having certain duties to perform under the statute to comply with those duties will render the marriage void."

  "A marriage good at the Common Law is good under our statutes, for there is nothing in them prohibiting such marriages or declaring them void, or prescribing that a failure to comply with the provisions of the statutes upon marriages shall render the marriage contract void".‚
(Fountain v Fountain, 80 Ark 485; shepardized as still controlling and Stare decisis)

  "We have seen that by the Law which precedes all statutes [Common Law, God's Law] a mere mutual present consent of competent parties, expressed in whatever form, or with no formalities, constitutes marriage".

  "Whatever be the form of the cermony, or if all cermony was dispensed with, if the parties agree presently to take each other for husband and wife, and from the time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage‚ ...".‚
(Darling v Dent, 82 Ark 81; shepardized as still controlling and Stare decisis)

  "Whatever presumptions are indulged are in favor of the legitimacy of such relationship.  Because of the high favor in which marriage is held by the Law, we have transmitted to us the special maxim, Semper praesumitur pro matrimonio‚, always presume marriage.  When a man and woman are living together as husband and wife, the Law will hold them to be such, even against strong probabilities that they are not".
(Darling v Dent, 82 Ark 82; shepardized as still controlling and Stare decisis)

    The general assembly has rightfully not tampered with God's institution and the sanctity of marriage, including trying to outlaw God's Law (an oxymoron).

    This Nation and Arkansas were founded as, and are, religious societies in which the Law is superior to statute, where the foundation and rule of decision in this Nation and Arkansas, is the Law of the Lord God, as promulgated by the 97th Congress in Public Law 97-280 and proclaimed and recognized by Arkansas in celebration of Christian heritage Week, February/March and ACA 1-2-119; and by many other decisions and rulings.

    The Bible (the Law) is the rock on which our Republic rests and that applying the teachings of the Scriptures in the lives of indiviuals, families, and societies is of clear value and that we, as a nation and individually, need to study and apply the teaching of the Holy Scriptures.

    The family law statutes of Arkansas are equity (chancery), while the Common Law is outside the jurisdiction of this court.  (see letter from Turpen, supra, and also see Marvin v Marvin, 557 P. 2d 106)

Equity: is a body of jurisprudence, or field of jurisdiction, differing in its origin, theory and methods from the common law...  A system of jurisprudence collateral to, and in some respects independent of law.  (Black's 5th)

    Licensing is the "legal" method to circumvent the Law - licensees CONSENTING to statutes which run COUNTER to Law, subject themselves VOLUNTARILY to equity jurisdiction.

    This is not to condemn equity itself, but rather the methodology (force and deception) used to draw people under its umbrella.

    The union/marriage of the parties in question was at the Common Law, not a state privilege, license or contract.  Arkansas has no statute (and lawfully could not have) providing that a marriage is void when no license is obtained, Wright v Vales, 1 Ark App 175.  The argument that a license is needed to have a marriage is not valid.  A license is needed merely as the binding instrument for "contract" with the state, and then for miscegenation, while a marriage without a license is, always was and always will be valid, "‚as the statute providing for procurement of a license is merely directory, not mandatory", DePotty v DePotty, 226 Ark 881. Therefore, the union between the parties is not bound by a contract which this court can adjudicate.

"Provisions of Family Law [chancery] do not govern distribution of property acquired during a nonmar‚ital [no state contract] relationship; such a relationship remains subject solely to judicial decision [non chancery]" Marvin v Marvin, 557 P. 2d 106

 "Public policy is to foster and promote the institution of marriage, but perpetuation of judicial rules which result in an equitable [chancery] distribution of property accumulated during a nonmarital [no state contract] relationship is neither a just nor effective way of carrying out that policy". Marvin, supra.
    A "Complaint alleging [an arraignment] while man and woman lived together they would ... share ... property accummulated could be amended to state a cause of action independent of allegations of express contract, ... contract or equitable relief".  Marvin, supra.

    In the Marvin case, Mr. Marvin, knowing there was no state contract, license or such to bind him in court (chancery), believed he could seperate from Michelle and that Michelle would have no recourse (legal or such) by which she could make any claim. What is elicited from this case is that the couple had a Common Law marriage (union absent a license) and Michelle had a recourse by which she could make a lawful claim, albeit not in chancery, as explained in the decision of Marvin, supra.

    Jurisdiction of a chancery court is applicable to obtain propective relief (id est, declare state recognition of parentage) but not on subject matter jurisdiction when there is no state contract upon which the court can adjudicate.  The doctrine of equity (chancery) compels the fair treatment of the parties in consideration of the contract between them.

    Hence, in such a case, chancery does not lie as between the parties.

    The chancery court can not assume, assert or take jurisdiction.  Once jurisdiction is challenged it must be proven by competant proof, Thomson v Gaskill, 315 US 442 and McNutt v General Motors, 298 U.S. 178. The burden of proof neccessarily falls upon the party seeking the specific relief.

    For such a matter to proceed in chancery, the party seeking the specific relief should produce be served subpoena duces tecum, ordering them to produce in court the contract between the parties.

    At Law, without the state, a father is the natural guardian of the minor children and is entitled to his children's custody, even above the mother.  Up through circa 1921, statutory authority of licensed (contract) marriages was engendered and incorporated in a body of statutory law for specific type of cases and circumstances, supra, which ran parallel to the Common Law but …did not supplant the Common Law and marriages without the state contract/license or the guardianship and custody of minor children without the state license/contract.

    The statutory law of guardianship and custody of minor children circa 1921 began the evolution of the "Tender Years" doctrine, usually because the father, not the mother, was away at work while the mother, not the father, remained home. Circa 1964 to 1979 the general statutory rule of Arkansas became that each parent's right to custody was of equal dignity, and the primary consideration determining custody was the welfare and best interests of the children.  See Stephenson v Stephenson, 237 Ark 543 and DeCroo v DeCroo, 266 Ark 275.

    Such is only statutory, not law and is presented to demonstrate how statutes (equity) find it difficult to stray far from Law, even returning to the same direction as Law.  These statutory authorities of licensed marriages began to open new territory regarding the guardianship and custody of minor children only in state contracted marriages not marriages contracted without the state.  This was not a supplant of the Common Law with regards to anything. The common law was before and above every other rule.

    The Arkansas supreme court has clearly affirmed that

"The chancellor dismissed her [defendant] complaint for want of equity‚"

(Furth V Furth, 97 Ark 273; shepardized as still controlling)

    A non-state marriage is actionable at the Common Law and statutory authority does not lie in the matter.  The Father, should not be denied his rights At Law and should not be denied the excercise of his guardianship of his children, lest he have an action At Law for his remedy.

    Under public law, there is no state interest in such a matter of child custody.

End excerpt --

CASE LAW

Living together as man and wife under a mutual agreement to live in the relation constitutes a common-law marriage. Knight v. State, 55 Cr.R 243 116 S.W. 56 (1909)

Evidence of agreement between man and woman, both competent to marry, presently to become husband and wife, and actual cohabitation by them as such, pursuant to such agreement, while holding themselves out to the public as husband and wife, establishes valid “common-law marriage”. Hill v. Smith, 181 S.W.2d 1015 (1944)

To establish a common-law marriage, allegation and proof are necessary that parties entered into agreement between themselves, either express or implied, to take each other for husband and wife during their lives, followed by cohabitation as husband and wife and holding each other out to the public as their respective spouses, and none of the three essentials standing alone is sufficient.  DE Shazo v. Christian, 191 S.W.2d 495, ref. N.r.e. (Civ.App. 1946)

The essential elements of a “common-law marriage” are an agreement to be husband and wife, accompanied by cohabitation and the holding out to the public that such a relationship is intended by the parties.  Middlebrook v. Wideman, 203 S.W.2d 686 (Civ.App.. 1947)

To make a prima facie or tentative showing of a common-law marriage, three elements must exist:  (1) an agreement to be husband and wife’  (2) living together as husband and wife’ and  (3) a holding out to the public that the couple are husband and wife.  Ex parte Threet, 333 S.W.2d 361 (Sup. 1960)

Here are some more cites -

Smith v. White, 216 S.W.2d 672, ref. n.r.e. (CivApp. 1949)
Smith v. Smith, 257 S.W.2d 335, ref. n.r.e. (Civ.App. 1953)
McIlveen v. McIlveen, 332 S.W.2d 113 (Civ.App. 1960)
Williams v. Williams, 336 S.W.2d 757 (Civ.App. 1960)
Padilla v. Texas Emp. Ins Ass’n, 343 S.W.2d 473, ref. n.r.e. (Civ.App. 1970)
Gary v. Gary, 490 S.W.2d 929, ref. n.r.e. (Civ.App. 1973)
Chatman v. State, 513 S.W.2d 854 (Civ.App. 1974)
Winfield v. Renfro, 821 S.W.2d 640, (App. 1 Dist. 1991)
Garduno v. Garduno, 760 S.W.2d 735 (App. 13 Dist. 1988)
McChesney v. Johnson, 79 S.W.2d 658 (Civ.App. 1935)

The parties conduct themselves in all ways neccessary to fulfill the compact of marriage, even at Law.

The parties publicly hold themselves as married.

These Republics, of this union, have adopted the Common Law as the rule of decision and as such recognizes Common Law marriages.  Moreover, the legislatures of these Republics have codified their recognition of such marriages.

The legislatures of these Republics have not outlawed the Law.

The parties being not married in equity, and absent equity, chancery has no jurisdiction and any such matter should be dismissed for 'want of equity'.
 
 

>>>> this is not legal advice.  if you want legal advice, get an attorney or accountant (for all the good it will do you)<<<<

April 1996
revised June 1998
revised January 2004
revised March 2004

mailto:  lawandrights@tellme1st.net
The above addresss is NOT correct.  For security reasons, the "#&" characters must be removed to be a correct address.  This reduces the possibility of a hacker autosearching for address links.
Simply copy and paste this address in your mail program, BUT remember to delete the "#&" characters.

goto top