2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 1 - Marriage in General
Section 40-1-10 - License required; county clerk.

A. Each couple desiring to marry pursuant to the laws of New Mexico shall first obtain a license from a county clerk of this state and following a ceremony conducted in this state file the license for recording in the county issuing the license.

B. To obtain a marriage license, the couple shall personally appear at the office of the county clerk issuing the license and provide sufficient identification to satisfy the county clerk as to each person's identity and qualification to receive a marriage license pursuant to Chapter 40, Article 1 NMSA 1978. On application to a judge of the district court, the court, for good cause, may authorize a person unable to appear personally to obtain a license from the county clerk, and a certified copy of the judicial authorization shall be filed with the county clerk.

C. The county clerk:

(1) shall collect the social security number of an applicant for a marriage license only as provided for in Section 27-1-10 NMSA 1978;

(2) shall not make available a social security number to another person except as provided for in Section 27-1-10 NMSA 1978; and

(3) may, thirty days after the commencement of each fiscal year, dispose of, in a secure manner, those social security numbers collected in the previous fiscal year that have not been requested as provided for in Section 27-1-10 NMSA 1978.

History: Laws 1905, ch. 65, § 1; Code 1915, § 3435; C.S. 1929, § 87-111; Laws 1939, ch. 25, § 1; 1941 Comp., § 65-110; 1953 Comp., § 57-1-10; Laws 1969, ch. 104, § 1; 1973, ch. 51, § 3; 2013, ch. 144, § 7.

Cross references. — For validation of marriages in 1905 where no license obtained, see 40-1-20 NMSA 1978.

For removal of local officers, see 10-4-1 to 10-4-29 NMSA 1978.

For age of majority, 18 years, see 28-6-1 NMSA 1978.

The 2013 amendment, effective June 14, 2013, required that applicants for a marriage license personally appear before the county clerk; required the county clerk to obtain the social security numbers of applicants; in Subsection A, after "couple desiring to marry" deleted "in" and added "pursuant to the laws of", after "New Mexico shall", added "first", after "county clerk", added "of this state", after "of this state and", added "following a ceremony conducted in this state", after "conducted in this state, file the", deleted "some" and added "license" and deleted "following the marriage ceremony", and deleted the former second sentence, which prohibited the county clerk from issuing a marriage license to persons under the age of majority and required the county clerk to obtain the affidavits of two persons as to the age of the applicants when there was a doubt as to their age; and added Subsections B and C.

Ceremonial marriage without a license is not void. — The New Mexico marriage licensure statute is merely directory. Ceremonial marriages performed without a New Mexico license are valid. Rivera v. Rivera, 2010-NMCA-106, 149 N.M. 66, 243 P.3d 1148, cert. denied, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

Marriages performed pursuant to license issued by another state. — Where the parties obtained a marriage license in Texas; the marriage license authorized any person who was authorized by the laws of Texas to perform marriage ceremonies in Texas to marry the parties; the parties were married by an ordained minister in New Mexico who was authorized to perform marriage ceremonies in New Mexico and in Texas; and the parties completed the marriage license by showing that the marriage had occurred in New Mexico and recorded the marriage license with the county clerk's office in Texas that had issued the marriage license, the marriage of the parties was valid. Rivera v. Rivera, 2010-NMCA-106, 149 N.M. 66, 243 P.3d 1148, cert. denied, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

Lack of evidence of license does not rebut presumption of marriage. — Mere lack of evidence of a record of the issuance of a license or of a ceremonial marriage is not sufficient to rebut the presumption of a ceremonial marriage. Trower v. Board of Cnty. Comm'rs, 1965-NMSC-040, 75 N.M. 125, 401 P.2d 109, overruled on other grounds by Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.

Marriage is civil contract which must be licensed. — In New Mexico, marriage is a civil contract which must be licensed. It is also a contract in which the public is interested and to which the state is a party. In re Estate of Bivians, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.

Only one parent's consent necessary. — When parental consent to the marriage of a minor is required, the consent of only one parent is necessary. 1964 Op. Att'y Gen. No. 64-135.

County clerk may issue marriage license where neither party has appeared personally to apply for the license where the form of application used is substantially in agreement with 40-1-18 NMSA 1978 and the county clerk is satisfied as to the ages. 1967 Op. Att'y Gen. No. 67-88.

Oath as to age before notary of another state. — The only reason that the parties appear before the county clerk or the deputy clerk is to allow the clerk's office to determine if the parties are of legal age to be married in this state without parental consent. The parties can take an oath as to their age before a notary of any other state. 1967 Op. Att'y Gen. No. 67-88.

There is no time limitation on validity of marriage licenses. 1968 Op. Att'y Gen. No. 68-53.

Marriage valid even though performed in county other than where license obtained. — A marriage is valid even though the marriage ceremony was performed in a county of this state other than the county wherein the marriage license was obtained by the parties. 1961 Op. Att'y Gen. No. 61-104.

Persons performing ceremonies not liable. — The act of a duly qualified justice of the peace (now magistrate), priest or minister, in performing a marriage ceremony where the marriage license was obtained in a county of this state other than that where the marriage ceremony was celebrated, does not fall within the mandatory or prohibited provisions, and the wording of this section does not expressly or by inference refer to persons performing the marriage ceremony. Therefore, such persons may perform such ceremonies without violating the marriage laws or subjecting themselves to criminal penalty. 1961 Op. Att'y Gen. No. 61-104.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Marriage §§ 33, 34.

Right to attack validity of marriage after death of party thereto, 47 A.L.R.2d 1393.

Validity of solemnized marriage as affected by defective license, or license wrongfully issued or obtained, 61 A.L.R.2d 847.

55 C.J.S. Marriage §§ 25, 26.