2021 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 1 - Marriage in General
Section 40-1-2 - Marriages solemnized; ordained clergy or civil magistrates may solemnize.

A. The civil contract of marriage is entered into when solemnized as provided in Chapter 40, Article 1 NMSA 1978. As used in Chapter 40, Article 1 NMSA 1978, "solemnize" means to join in marriage before witnesses by means of a ceremony.

B. A person who is an ordained member of the clergy or who is an authorized representative of a federally recognized Indian nation, tribe or pueblo may solemnize the contract of marriage without regard to sect or rites and customs the person may practice.

C. Active or retired judges, justices and magistrates of any of the courts established by the constitution of New Mexico, United States constitution, laws of the state or laws of the United States are civil magistrates having authority to solemnize contracts of marriage. Civil magistrates solemnizing contracts of marriage shall charge no fee therefor.

History: Laws 1859-1860, p. 120; C.L. 1865, ch. 75, § 1; C.L. 1884, § 977; C.L. 1897, § 1414; Code 1915, § 3426; C.S. 1929, § 87-102; 1941 Comp., § 65-102; 1953 Comp., § 57-1-2; Laws 1983, ch. 193, § 1; 1989, ch. 78, § 1; 2001, ch. 99, § 1; 2013, ch. 144, § 2.

Cross references. — For magistrates solemnizing contract of marriage, see 35-3-2 NMSA 1978.

The 2013 amendment, effective June 14, 2013, defined "solemnized"; in the, deleted "clergyman", and added "marriages solemnized; ordained clergy" and after "solemnize", deleted "fees"; added Subsection A; in Subsection B, after "A person", deleted "may solemnize the contract of matrimony by means of" and added "who is", after "who is an ordained", deleted "clergyman" and added "member of the clergy", after "the clergy or", added "who is an", after "recognized Indian", deleted "tribe" and added "nation, tribe pueblo may solemnize the contract of marriage", and after "without regard to sect", deleted "to which he may belong"; and in Subsection C, in the first sentence, added "Active or retired judges".

The 2001 amendment, effective June 15, 2001, substituted "A person may solemnize" for "It is lawful, valid and binding to all intents and purposes for those who may so desire to solemnize" in Subsection A; and inserted "United States constitution" and "or laws or the United States" in Subsection B.

The 1989 amendment, effective June 16, 1989, in Subsection A, inserted "or authorized representative of a federally recognized Indian tribe" and added "or the rites and customs he may practice", and made minor stylistic changes throughout the section.

Proof and presumption of marriage ceremony. — A marriage ceremony may be proved by any competent witness present at the ceremony, and when proven, the contract, the capacity of the parties, and the validity of the marriage will be presumed. United States v. de Amador, 1891-NMSC-025, 6 N.M. 173, 27 P. 488; United States v. de Lujan, 1891-NMSC-026, 6 N.M. 179, 27 P. 489; United States v. Chaves, 1891-NMSC-027, 6 N.M. 180, 27 P. 489.

Statute preceded common-law rule. — This section and historical fact indicate that, in the belief of those who framed and passed it, either because of the requirement of the council of Trent in 1563, or otherwise, the only valid marriage theretofore was one celebrated by a Roman Catholic priest, and so a mere consent marriage was and is invalid, since common-law marriages were never legalized in New Mexico, and the first regulating statute, of which 40-1-1 NMSA 1978 was a part, preceded the adoption of the common law as the rule of practice and decision. In re Gabaldon's Estate, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672, 94 A.L.R. 980.

Marriage not recognized unless formally contracted and solemnized. — New Mexico does not recognize any marriage consummated therein which is not formally consummated by contract and solemnized before an official. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345; Merrill v. Davis, 1983-NMSC-070, 100 N.M. 552, 673 P.2d 1285.

Civil magistrates within section. — Probate judges, justices of the peace (now magistrates), and judges of the district court are civil magistrates within this section, although not specifically mentioned. Golden v. Golden, 1937-NMSC-021, 41 N.M. 356, 68 P.2d 928.

County clerk not included. — Since county clerk is not a civil magistrate he cannot perform a marriage ceremony. 1941 Op. Att'y Gen. No. 41-3746.

Army or navy chaplain may perform marriage. — A duly ordained clergyman serving as an army or navy chaplain may perform marriage ceremony in this state. 1942 Op. Att'y Gen. No. 42-4028.

Police judge may perform marriage. — A police judge may legally perform a marriage ceremony in this state since he is a "civil magistrate." 1942 Op. Att'y Gen. No. 42-4133.

Area where judge may perform marriage ceremony. — A municipal judge cannot perform a marriage ceremony outside of the municipality in which he sits. 1988 Op. Att'y Gen. No. 88-36 (rendered under prior law).

A magistrate judge cannot perform a marriage ceremony outside of his district. 1988 Op. Att'y Gen. No. 88-36 (rendered under prior law).

Territorial jurisdiction of judge. — Except for probate and municipal judges, judges and justices may solemnize marriages anywhere in New Mexico. 1991 Op. Att'y Gen. No. 91-09.

Ceremony performed with proxy. — Marriage ceremony may be performed where one of the parties is represented by a proxy as has been allowed and recognized in the Catholic church since before the Council of Trent. 1943 Op. Att'y Gen. No. 43-4283.

Fee for probate judge performing ceremony. — A probate judge may perform a marriage ceremony; and while he may not charge a fee, he could keep as his own any voluntary gift for the service. 1917 Op. Att'y Gen. No. 17-2010; 1929 Op. Att'y Gen. No. 29-17; 1931 Op. Att'y Gen. No. 31-27; 1943 Op. Att'y Gen. No. 43-4352.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Marriage § 40.

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

Admissibility of evidence in prosecution for false pretense by promise of marriage of similar attempt on other occasion, 78 A.L.R.2d 1359.

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest, 14 A.L.R.2d 624.

Presumption as to advancement to child by gift on marriage, 31 A.L.R.2d 1036.

Validity of marriage as affected by lack of legal authority of person solemnizing it, 13 A.L.R.4th 1323.

55 C.J.S. Marriage § 29.